If corruption charges against Jacob Zuma were to be re-enrolled, a fraught responsibility would fall on ANC secretary general Gwede Mantashe.
Under the ANC’s constitution, the party’s secretary general “may suspend” a member or office bearer indicted to appear in a court if that seems necessary — “on the authority of” the party’s national executive committee (NEC) or national working committee.
Asked whether he would seek to do so, Mantashe this week said he does not run the ANC through the Mail & Guardian. “That is the reason we communicate decisions,” he said.
Not that there is any decision yet.
The ANC is waiting for the National Prosecuting Authority (NPA) to make the next move after the Supreme Court of Appeal last week rejected Zuma’s efforts to avoid prosecution. This ruling followed the high court setting aside the NPA’s decision to drop charges against him.
The NPA, in turn, has said it is waiting for information from the Hawks, including “a timeline” to establish the availability of witnesses.
The only decision the NPA has promised is on whether it will entertain fresh representations from Zuma on why he should not have to answer corruption allegations in court.
Though prosecutions head Shaun Abrahams promised that decision “within the next few days” last Friday, NPA staff could not say when it may be announced.
For the moment, though, experts agree that Zuma is not currently indicted, and so is not Mantashe’s responsibility — yet.
“There must be a fresh indictment; they can’t just serve the old one,” says Stephen Tuson, adjunct professor of law at the University of the Witwatersrand, who has lectured on criminal procedure.
Come December, however, that may no longer matter.
In 2012, an ANC battered by corruption allegations both re-elected Zuma as its leader and established an integrity committee at its conference in Mangaung. The committee got off to a slow start but has been endorsed, at least in theory, at every step of the way since.
In mid-December, at the Gauteng conference where the ANC is due to elect Zuma’s successor, the party is also going to consider giving the integrity committee very sharp teeth indeed.
The ANC’s NEC should “demand that every cadre accused of, or reported to be involved in, corrupt practices account to the integrity committee immediately or face” disciplinary action, the party’s preparatory conference recommended earlier this year.
It should also “summarily suspend people who fail to give an acceptable explanation or to voluntarily step down” — and should “publicly disassociate” itself from anyone accused of corruption.
The December conference, then, is left with a choice. It can decide not to endorse — and be seen to fail to endorse — a strong anticorruption stance half a decade in the making and seemingly popular among voters. Or it can set up a policy that would require it to disavow the man who is, on paper, still due to be president of the country for two more years.
Not that Zuma is likely to last long in the hands of the integrity committee if recent history is any guide. Earlier this year, a still-confidential document first reported on by labour columnist Terry Bell shows the party’s integrity committee summoned Zuma to explain himself.
The committee, headed by stalwart Andrew Mlangeni, had tough questions but seemingly did not get the answers it was looking for. Zuma, the document reflects, insisted that he was being targeted by foreign governments intent on capturing the ANC.
The committee re-jected that explanation.
At the time, Zuma was arguably not a criminal accused. Since last week’s appeal court decision, many legal experts believe he is one notch beyond that: criminally charged.
“When the decision [not to prosecute] was set aside, the charges were automatically reinstated,” said Professor Jamil Mujuzi, who lectures on the law of criminal procedure at the University of the Western Cape, about the appeal court decision.
Mujuzi, like the majority of legal experts polled, cited a 2014 appeal court decision as a clear precedent to show the charges are now in effect. Other legal experts argue that the charges only fully come back into force once there is positive action by Abrahams.
“I’ll be more comfortable to say: ‘Yes, he is charged’ once the matter has been re-enrolled,” said one advocate close to the matter. “It is not necessary to argue the point before that.”
More likely to be argued is the substance of new representations Zuma has said he wishes to make, and which seem likely to be entertained.
“You can generally make re-presentations in a criminal case at any time,” said Tuson. “As things come to light, as events unfold, you can say it should be reconsidered because such-and-such a thing has happened.”
Zuma’s legal team has indicated that the fall from grace of KPMG is one event it would like to bring to the NPA’s attention. At the heart of the case against Zuma is a 490-page report by the auditing firm compiled by Johan van der Walt.
He was also the senior partner responsible for the report on the South African Revenue Service’s so-called rogue unit, a report that KPMG dramatically dis-avowed as having fallen short of its own standards.
In one draft of the Zuma report KPMG stressed that its work on Zuma did not constitute an audit or legal advice. Yet, the firm draws damning conclusions from its pain-staking recreation of money flows and meetings.
These include that Zuma at least tacitly approved of the use of his name to secure business for his financial adviser — and generous benefactor — Schabir Shaik.
The KPMG report is also the original source of the “783” number that has haunted Zuma for years.
KPMG calculated that Zuma benefited from 783 individual payments that could be construed as corruption. That number was taken up in the original indictment against Zuma, and morphed into the widespread — though mistaken — belief that he faces 783 separate charges of corruption.