In the Pretoria High Court 2D, Advocate Kemp J Kemp hunched his shoulders and pushed his head out like a heron about to snaffle its prey.
The 2009 decision to drop more than 700 fraud, corruption, racketeering and money-laundering charges against his client, President Jacob Zuma, was a “message”, Kemp argued, that the National Prosecuting Authority’s “enormous powers” would never again be used to “decide who will be the president of the country” or “to engineer political results”.
“How is that not something that should be upheld, and that should not be lauded?” he asked a full sitting of the High Court bench in the South African capital.
Kemp was in court fighting against the opposition Democratic Alliance (DA), who had filed an application to have the dropping of charges declared “irrational”. The 2009 decision to discontinue Zuma’s prosecution was made by Mokotedi Mpshe – then acting national director of public prosecution.
If the application succeeds, “charges against Zuma may be reinstated”, the DA’s James Selfe told Al Jazeera.
Mpshe had ostensibly dropped the charges after listening to conversations between Leonard McCarthy, then head of the Scorpions special investigative unit, and former prosecutions leader Bulelani Ngcuka, emanating from phone taps by still-unestablished sources.
Ngcuka and McCarthy had apparently discussed whether the timing of the charges against Zuma could be manipulated to favour former President Thabo Mbeki, who was contesting the African National Congress’ (ANC) presidency against Zuma at the ANC’s 2007 Polokwane conference. Zuma ultimately won.
Working in the shadows
The irony of Kemp’s argument was inescapable: The president, who recently weathered a vote of no confidence in the national legislature through the ANC’s substantial majority, has long stood accused of eroding the independence of institutions such as the prosecuting authority and using the state’s intelligence and security apparatus for his own political ends.
The former head of Mbokhodo, the internal intelligence arm of the ANC during the struggle, Zuma is well-attuned to working in the shadows. State intelligence has been used against both mainstream political opponents and grassroots activists, whether in the country’s sprawling shack settlements or in the #FeesMustFall student protests.
Writing in Business Day, political analyst Steven Friedman said that Zuma “was schooled in the security world and … operates politically much as a security operator would, far more concerned with how to stay one step ahead of the ‘enemy’ than with trying to achieve something for the country”.
In reference to a proxy war developing between the president and Finance Minister Pravin Gordhan, Friedman wrote that under Zuma’s watch “the security cluster in general and the spies in particular have much more room to move – and so to meddle in national politics ….”
Six days before Gordhan was to deliver his recent budget speech, he received three pages of questions from the Hawks, an investigative unit that replaced the Scorpions, who were disbanded following pressure from the ANC while it was investigating Zuma before his ascension to the presidency
The questions related to the National Research Unit, an investigative unit situated in the South African Revenue Service, which Gordhan had headed from 1999 to 2009.
In a statement released by Gordhan following his speech – and after the list of questions had been leaked to the media – the finance minister “categorically state[d] that the Hawks have no reason to investigate” him.
“I believe this was meant to intimidate and distract us from the work that we had to do to prepare the 2016 budget,” he said in the statement.
Gordhan continued: “There is a group of people that are not interested in the economic stability of this country and the welfare of its people. It seems they are interested in disrupting institutions and destroying reputations.”
He later fired off another salvo, sending a letter to the Hawks asking them “under whose authority” he was being investigated.
The ministers of police and state security hastily convened a news conference where they maintained that the questions did not mean Gordhan was being investigated.
The president and the finance minister were facing off, but even Zuma hard-men such as ANC secretary-general Gwede Mantashe, and the party itself were coming out publicly in support of Gordhan.
“This is a startling development,” said Richard Pithouse, a political analyst and academic at the Unit for Humanities at Rhodes University. “The liberals within the ANC, the communists, the trade unionists, many people who one would think would support Zuma [are] openly backing Gordhan.”
‘South Africans were as depressed as their currency’
After being elected ANC president, Zuma had once danced unchallenged through South Africa’s political landscape – singing his trademark struggle song, Mshini Wami (“Bring me my machine gun”) to populist frenzy, while promising a more everyman administration than that of his predecessor, Thabo Mbeki.
He had revolutionised how power could be attained and consolidated within the ANC in the build-up to his 2007 election, and had kept a firm grip on the party ever since.
Yet, his control no longer appears absolute. To understand why, analysts suggest, one must rewind to December of last year.
There was a total backlash against the president from all sectors of society.
By the time the second Saturday of December 2015 had come around, South Africans were as depressed as their currency.
The rand had nose-dived following Zuma’s sacking of finance minister Nhlanhla Nene, replacing him with an unknown parliamentary backbencher, David Van Rooyen.
An estimated 177 billion rand ($11.6bn) had been lost on the Johannesburg Stock Exchange and ordinary South Africans were contemplating bludgeoned investments and shaky futures – alongside the distressing sense that Zuma had acted with a self-serving impunity.
“That moment of overreach by Zuma changed everything,” says Pithouse. “There was a total backlash against the president from all sectors of society following the collapse of the rand.”
A country resigned to the president’s litany of scandals – including the appointment of alleged lover Dudu Myeni as South African Airways boss and Public Protector Thuli Madonsela’s findings that Zuma and his family had “unduly benefited” from a taxpayer-funded 246-million-rand ($15.7m) upgrade to his private residence at Nkandla in rural KwaZulu-Natal – was now angry and deflated.
The mood darkened when a minister in the presidency, Jeff Radebe, alluded that Nene’s sacking had not been discussed at a cabinet meeting held just before the announcement was made by the presidency on December 9. The ruling ANC also appeared to be caught unaware by Zuma’s decision.
Van Rooyen reportedly pitched up at the treasury with two “advisers” linked to the Gupta family from India, whose businesses – interwoven with that of Zuma’s son, Duduzane – had apparently benefited from their proximity to the president with several government contracts.
“[Firing Nene] was a most unfortunate act on the part of the president,” says George Bizos, a human rights lawyer who was part of the legal team that defended, among others, Nelson Mandela and Govan Mbeki at the 1963 Rivonia Treason Trial. “He obviously didn’t consult his highly placed advisers in government. That the president was almost compelled within a very small period of time to change his decision was encouraging, though.”
Zuma had sacked Nene on a Thursday night, appointed Van Rooyen the next day and, by that Sunday night, announced the reinstatement of Nene’s predecessor, Gordhan – after meeting business leaders and political elders over the weekend.
The markets stabilised slightly, but the damage to South Africa’s economy – and Zuma’s reputation – had been done.
“He seemed to be operating outside his own party and his cabinet in an attempt to give a patsy appointment the keys to the national treasury – with the apparent intention of gaining access to it for his patronage network,” observed Pithouse.
An emboldened Gordhan’s fingers were clenched around the national purse-strings while Zuma’s vice-like grip on the ANC appeared to be loosening.