Don't mention the Stalingrad Strategy

Andrew Donaldson writes on Dali Mpofu's latest bravura performance in the SCA


THE Supreme Court of Appeal has reserved judgment on Jacob Zuma’s bid to overturn the Pietermaritzburg High Court’s rejection of his attempt to privately prosecute advocate Billy Downer and journalist Karyn Maughan for doing their jobs; the former for deigning to want Convict Number One finally answer fraud and corruption charges and the latter for reporting on this ongoing saga.

Anyone who has paid even the slightest attention to this sorry business will be aware that the courts’ patience has been sorely tested over the years by Dali Mpofu, the former president’s counsel and the advocate sometimes known as Odium Flap.

It was no different in Bloemfontein last week. Much odium, much flapping. This apparently according to Maughan, who has found herself, through no fault of her own, in the unusual position of commenting, blow by blow, on a case in which she is directly involved.

Readers will recall that Zuma had, in a nutshell, cried foul because Downer had apparently revealed to Maughan that the confidential medical condition that secured Zuma’s release from 15-month prison sentence on contempt of court charges had been listed on a military doctor’s certificate as “medical condition”.___STEADY_PAYWALL___

A gross violation of his client’s right to privacy, you may agree, but last Thursday Mpofu argued that any prosecutor who divulges such information to anyone, regardless of its confidentiality, without the express permission of the national director of public prosecutions is guilty of a crime and could face a prison sentence of up to 15 years. 

According to Maughan, a specialist legal reporter, no-one has ever been prosecuted under this provision of the NPA Act. Unsurprisingly, there are those who don’t approve of such know-it-all behaviour. My old friend Carl Niehaus, for example. His vilification of Maughan on social media has, from time to time, approached the intensity of rabid sexual mania. 

There was, we recall, his recommendation in November last year, that she be kicked “like a dog” until her “owner” emerges. Carl defended himself here by claiming that his critics weren’t up to speed with their Ndebele phrases. Because that, it seems, is the sort of thing the Ndebele do: give cheeky women a perfectly innocent kicking when needs be. And besides, he was just exercising his freedom of speech.

But back to Mpofu who further argued that, as Maughan had reported on the Butternut’s mysterious medical condition, she was the “recipient of the proceeds of crime” and should accordingly be prosecuted as such. Fair enough, but by the same perverse logic, is not Mpofu also a “recipient of the proceeds of crime” — by virtue of the fact that his client is an alleged criminal? 

There were further forays into the irrational. “If [Downer and Maughan] are all so innocent,” Mpofu asked, “why are they here?” Good question and, again, one that may well be asked of the Blesser himself. For he too was in court last week. Not in the dock, as desired, but as an observer in the public gallery.

Then came a masterful twist, a great swerving chicane of an argument. Could it be, Mpofu argued, that Downer and Maughan were now resorting to Stalingrad tactics to avoid their own day in court? This shortly after Mpofu had told the court that there was no truth in the suggestion that his client had resorted to such tactics to delay his own trial for some two decades. 

The Stalingrad strategy attributed to Zuma was a media-concocted “mumbo jumbo”, he claimed. He forgets, of course, that his client’s previous advocate, the late Kemp J Kemp, had described his legal defence as such in a 2007 hearing.

Advocate Geoff Budlender SC, who appeared on behalf of Downer, earlier revealed that the  “mumbo jumbo” had so far been working wonders for Mpofu’s client. As Budlender put it: “To allow the private prosecution to proceed would mean that Mr Zuma would be allowed to succeed in his strategy of delay — which this new episode has already achieved in substantial measure — and to continue to attempt to have Mr Downer removed as the prosecutor.”

Be that as it may, and with the court now adjourned to weigh up the arguments in this matter, it does seem that Mpofu has a bit of spare time on his hands. Might there then be an opportunity for him, or at least his unreal form of legal expertise, in the New York civil lawsuit that is the latest instalment in Donald Trump’s mounting legal difficulties? 

Mounting problems

It has not been going well for the Donald. For one thing, it appears that he could be evolving into some form of marine life. The Times reported that when he appeared in the Supreme Court in lower Manhattan on Monday his mouth “opened in a fish-like motion that might have been a sigh or a suppressed yawn”. Sadly, no further detail was supplied. Was it perhaps a guppy that he resembled, a manta ray or even a puffer fish?

Fishiness does however seem to be the least of his problems. Arthur Engoron, the judge in Trump’s civil fraud trial, has issued a gag order preventing Scrotus from attacking court staff on social media, This follows outbursts describing NY attorney-general Letitia James as “fraudulent”, “grossly incompetent” and “racist”. The Trump Organisation, meanwhile, had savaged Engoron, describing him as a “far-left Democrat” and a “Horribly Biased And Very Corrupt Judge”. 

Such animus towards Engoron is perhaps understandable. The judge last week ruled that Trump is a liar who committed fraud by inflating the value of his assets by millions if not billions of dollars. One example of this is the claim that his Trump Towers apartment was some 30 000 square feet in size, when it’s in fact 11 000 square feet. As Engoron put it, “A discrepancy of this order of magnitude, by a real estate developer sizing up his own living space of decades, can only be considered fraud.” In what can only be described as a rejoinder of Mpofu-like insightfulness, Trump’s lawyers argued that square footage is a subjective matter. 

Perhaps the most wounding development in all of Trump’s hassles is that he has had to renegotiate his wife Melania’s pre-nuptial agreement because she fears that his legal costs are going to “bleed him dry”. She’s a smart cookie, and clearly needs to protect her interests. It may not seem like much, but this is the stuff that high-society New York really does care about. Not fish.

History lessons

Much singing of The Red Flag down at the Slaughtered Lamb (“Finest Ales & Pies”) as the regulars mark the anniversary of the Battle of Cable Street, the clashes that took place in London on Sunday, 4 October 1936, between the Metropolitan Police and demonstrators who had rallied to halt a march by the virulently anti-semitic British Union of Fascists.

To celebrate the BUF’s fourth anniversary, thousands of Blackshirts had planned to march through the East End, which then had a large Jewish population. A Jewish People’s Council petition calling for the march to be banned gathered some 100 000 signatures, including those of the mayors and civic leaders of all the East End  boroughs, but the then home secretary, John Simon, refused to do so.

As a result, a huge turn-out of anti-fascist protesters, including local trade unionists, Irish workers, socialists, communists, anarchists and British Jews gathered to keep the BUF out of their suburbs. Estimates of their number vary greatly, ranging from 100 000 to more than 310 000, but they far outnumbered the roughly 3 000 to 5 000 Blackshirts who had turned up. This was a small percentage of the party’s supporters; at the time the BUF was said to have some 50 000 members.

The 6 500 policemen who had been deployed to protect the BUF marchers bore the brunt of it that day. Protesters had built a number of barricades on the narrow East End streets, which the police had attempted to remove. They were met with fierce resistance. In addition to hand-to-hand fighting, they were pelted with missiles such as rocks, chairs, rubbish, rotten vegetables and the contents of chamber pots. Scattered marbles proved extremely effective against mounted police. Fearful of further violence, the police convinced BUF leader Oswald Mosley to leave the area. The BUF were permitted to march instead in the West End, and their event ended at Hyde Park.

The battle is now cemented in lore as the moment when British fascism was decisively beaten. However, as authors Tom Holland and Dominic Sandbrook make clear in an episode of their The Rest is History podcast, this is not quite the case. If anything, the BUF won the propaganda battle that day, presenting themselves as a law-abiding group who were denied their freedom of expression in the face of mob violence. BUF membership grew after the event. Even more dismaying, Britain experienced its worse case of interwar anti-semitic violence in the week after the march, when Jewish businesses in the East End were targeted and violently attacked by BUF thugs in what is now known as the Mile End Pogrom.

I mention all this in the light of the Independent Electoral Commission’s questionable decision to allow the xenophobic Operation Dudula to contest the elections next year. This gang of thugs, who intend fielding candidates in all nine provinces, claim they are patriots and are acting in the interests of all South Africans when they target, harass and assault foreigners. Mosley and the BUF used much the same rhetoric when they went after Jewish migrants who had settled in the UK to escape antisemitic violence in eastern Europe a century ago.

Commentators have slammed the IEC for giving Operation Dudula the go-ahead to register as a political party. “The bar is really low,” political analyst Sipho Seepe told Daily Maverick. “This raises a bigger question about the weaknesses which may exist in the IEC’s [requirements for registration].” 

The IEC is apparently not required to scrutinise an organisation’s previous history and will allow any group to contest elections providing that their constitutions is in line with that of the country’s. However, it could be argued that Operation Dudula’s stated goals fail quite spectacularly in this regard: 

“To instil patriotism amongst South Africans to fight illegal and undocumented immigrants, as a progressive patriotic political party, is constituted by the paying members who are citizens of the Republic of South Africa and is founded on the basic needs, aspirations and expectations of the people, our guiding principles are South Africans first in South Africa and South Africa is our only home.”

There is, sadly, consensus out there that Operation Dudula has a constituency — mainly despondent black voters who no longer trust political parties. The organisation’s rapid rise in prominence can be directly linked to a steadily worsening economic climate, and it is clear that, in the view of the group’s supporters, many  are convinced that foreigners are the root cause of all their hardships. It is apparently all too easy to blame hapless Zimbabweans and Mozambicans for the misery that arises from the consistent failures of your elected leaders. 

There is now every possibility that Operation Dudula could be attracting EFF supporters, many of whom do not support Julius Malema’s call that the country’s immigration laws be scrapped “for Africans”. That said, the EFF’s “open borders” policy may not be set in stone. Malema changes his mind more often than he’s had hot breakfasts.

Road rage

Is it really so terrible that William Nicol Drive has been renamed after the late Winnie Madikizela-Mandela? Anyone who has been stuck in traffic on this busy thoroughfare can tell you that it’s a grim experience. There is considerable opinion that it is fitting and proper then that such hellishness be formally associated with the Mugger of the Nation.