JAUNDICED EYE

At long last President Cyril Ramaphosa and former president Jacob Zuma have something in common. They’re both praying for the success of his latest Stalingrad legal manoeuvres.

A sitting president would rarely find himself secretly rooting for a hated predecessor, one who is actively conspiring to unseat him, to succeed in a judicial appeal against a humiliating jail sentence. It’s very likely, however, that Ramaphosa was hoping for exactly that result in this week’s hearing before the Supreme Court of Appeal in Bloemfontein. 

Behind this unusual situation is Ramaphosa's inability to carry out the highest obligations of his presidential office, those that command him to ensure the safety and security of South Africa’s people. ___STEADY_PAYWALL___

The appeal at issue was against a Gauteng High Court ruling that former president Jacob Zuma’s medical parole from jail was unlawful and he should be returned to serve out the rest of his sentence. Zuma previously had been sentenced to 15 months for defying a Constitutional Court order that he appear before the Zondo Commission into State Capture and answer criminally non-incriminatory questions. 

Zuma’s “imprisonment” — he did not spend a single night in a cell but was immediately transferred to a private hospital — was the trigger for last July’s wave of violent unrest. At least 360 people were killed in KwaZulu-Natal and Gauteng, with economic damage exceeding R70bn and 2m job losses, according to testimony before the Human Rights Commission. 

In the face of this “attempted insurrection”, as Ramaphosa defined it, the president folded his hand with alacrity. Zuma was released through an administrative contrivance that could not possibly have taken place without a nod and wink from the Ramaphosa Cabinet. It’s inconceivable, given that the Ramaphosa exhaustively debates everything, even as to whether it should spend R22m on a flag monument, that this would not have been discussed and had to have at least tacit approval.

The release mechanism was an old party favourite, the fake medical parole, which had been employed previously by the African National Congress with great success. The then National Commission of Correction Services (and disgraced former spy boss) Arthur Fraser ruled that Zuma was terminally ill and should be released forthwith. 

In doing so, Fraser had to overrule his department’s own Medical Parole Advisory Board, which had found, based on the assessments of the evidence of five medical specialists, that Zuma definitely did not qualify. This was no hindrance to Fraser, who previously had been “fired” by Ramaphosa over his scary shenanigans at the State Security Agency but then inexplicably offered by Ramaphosa the top job at Correctional Services.

Ramaphosa expressed his customary “surprise and shock” at Zuma’s release, while secretly surely heaving a sigh of relief. The casus bellum had been removed, avoiding a further round of Zuma-inspired rioting, and it was achieved under a sufficiently thick patina of apparent legality that Ramaphosa did not need to be too vigorous in his play-acting.

This is not all just febrile speculation. 

Despite Ramaphosa’s supposed consternation at the parole of Zuma, it is revealing that the State did not challenge Fraser’s highhanded and patently unlawful actions. It was left to the Democratic Alliance, the Helen Suzman Foundation and AfriForum to apply to the High Court to challenge the medical parole stratagem. Ranged against them, supporting Zuma, was the Department of Correctional Services, which falls under the control of Ramaphosa's close Cabinet ally, Justice Minister Ronnie Lamola.

The get-out-of-jail card however failed.

In a clearly argued but possibly career-limiting judgment in favour of the applicants, High Court Judge Elias Matojane cut to the nub of the matter. It was not up to the commissioner to decide on medical parole, based on an offender’s “trusted practitioners” having diagnosed terminal illness or incapacity. 

He pointed out that the ANC government had in 2012 passed an amendment that specifically entrusted the power of medical parole to an independent expert body to make an impartial medical, not political, decision. Turning to the political considerations, Matojane wrote: “If Mr Zuma did die while incarcerated, it could have ‘dire consequences’ and ‘could have ignited events similar to that of July 2022’. [But] threats of riots are not a ground for releasing an offender on medical parole.” 

The SCA on Tuesday reserved judgment on the appeal, so we shall have to wait a while to see whether the passionate, though legally implausible and sometimes incoherent, arguments made by Zuma’s chief counsel, Advocated Dali Mpofu, will prevail. That seems unlikely but in the meanwhile, the delay does at least give Ramaphosa — a man in desperate need of political oxygen — some breathing space, as he tries to limp through to the December leadership conference where he hopes to secure a second term.  

Ramaphosa’s political ambitions — repeatedly demonstrated in his willingness to allow ANC factions (in this case, Zuma’s Radical Economic Transformation supporters) and ANC constituencies (like the taxi industry and the unions) to sow havoc and hold the country to ransom — are not the only problem.  He also carries personal baggage that deters him from permitting the police and security services to respond forcefully to unrest.

That harks back to events at Marikana, which happened 10 years ago this week. 

The “Marikana massacre”, in which 34 striking miners were shot dead by the police and 10 security guards were murdered by the miners, occurred during a labour conflict at the Lonmin mine. Ramaphosa was a director of Lonmin and using his political clout as deputy-president of the ANC, he had energetically lobbied cabinet ministers and the police commissioner to act strongly against the “dastardly criminal” miners.

This sneaky resort to covert strongman tactics on the part of Ramaphosa is still dogging him today.

In July, the courts ruled that he can be sued in his personal capacity by the 349 surviving Marikana mine workers for around R1bn in damages. Despite being exculpated by the Farlam Commission into the massacre, the Gauteng High Court found that a case could be made by the former miners and their families that Ramaphosa “participated in, masterminded and championed the toxic collusion” between Lonmin and the police that led to the massacre.

Ramaphosa's obsession with maintaining ANC unity at any cost, coupled with his sordid involvement in what happened at Marikana, and the prospect of him being criminally charged in connection with Farmgate, has left us with a paralysed president. And because he is in hock to his most dangerous political opponent, Jacob Zuma, he has neither the moral credibility nor political courage to act to fulfil his constitutional oath. 

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