Live by the legal sword, die by it

Recourse to the courts is often the first refuge of the scoundrel with deep pockets. A deliberately protracted judicial process can be used by the wealthy to delay, to avoid, to obfuscate, and to bully their adversaries into submission.

It’s an approach that has worked well for various South African rogues, embezzlers, crooks and unsavoury politicians seeking to evade justice, or at least postpone it for as long as possible. Big business is particularly quick to sic the lawyers onto their financially less well-endowed rivals, using the eye-watering cost of defending a legal action to crowbar their co-operation.

This week there was a rare victory for the little man against such corporate thuggery when a former Vodacom employee triumphed after a 16-year struggle that went all the way to the Constitutional Court. The court ruled that Kenneth Nkosana Makate had, indeed, invented the Please Call Me concept from which Vodacom admits to having raked in billions of rands.

It ordered Vodacom to negotiate in good faith with Makate to determine “reasonable compensation” for his innovation. The judgment was scathing of Vodacom’s conduct, saying it left a “sour taste in the mouth”. Justice Chris Jafta said the way Vodacom had defended its case – through legal, technical defences – was “not the kind of conduct to be expected from an ethical corporate entity”.

Ah, those comfortably rarefied upper reaches of the law. Prithee, where does one go to find that mystical creature, “an ethical corporate entity”? A unicorn farm?

Be that as it may, former Vodacom chief executive officer Alan Knott-Craig also came in for a roasting. The court reiterated an earlier high court finding that Knott-Craig had lied when he claimed to personally have come up with the idea while chatting to a colleague. Jafta said Knott-Craig’s “untrue story appears to have been part of a strategy to deny the applicant compensation for the idea”.

Knott-Craig is a director of Murray & Roberts, and sits on their audit and sustainability committee, and briefly was a non-executive director of Nedbank. Nedbank coincidentally happens to be one of the financial institutions that, presumably for yet unexplained reasons of probity, withdrew banking services from the businesses of the Gupta family, controversial benefactors of President Jacob Zuma.

It will be interesting to see how the cosy club of corporate SA now deals with Knott-Craig. The Guptas, after all, have never been found guilty of anything, except in the court of enflamed public opinion. Naughty Knott-Craig, in contrast, effectively has been declared a liar and intellectual property thief, and by the highest court in the land.

Of course, in the same way that a readiness to resort to the law can be evidence of dubious motives, so too can be a reluctance.

Zuma has been adroit at exploiting the judicial process to intimidate and bluster. He has sequentially instituted defamation actions against an array of cartoonists and reporters, only to later withdraw them, but not before the defendants’ costs had mounted alarmingly.

Also, as president, Zuma has thrown state funds into defending and then, upon losing, embarking on appeals all the way to the Constitutional Court. Not necessarily with the hope of winning but merely delaying having to implement a ruling that was not liked, as with his rear-guard action over Nkandla, regarding which the Constitutional Court klapped him a few weeks back.

Here, then, we have a man who is quick to stand on his dignity and to inspan the law to protect his interests. Which makes puzzling his reluctance to sue Economic Freedom Front leader Julius Malema.

Malema stated – speaking in public and thus daringly bereft of the legal protection he would have had if he had sheltered behind parliamentary privilege – that Zuma and the Guptas had taken R6 billion from SA, packed it in suitcases, and taken it to Dubai. Zuma had gone on an “unexplained and private” trip to the United Arab Emirates “because when Zuma travels he doesn’t get searched by customs”.

The presidency’s response was forceful, on the face of it: “Mr Malema’s malicious allegations are both untruthful and defamatory. The Presidency reserves its rights.” Yet Malema has not backed down and the most litigious president in our history has, a month later, still not trundled out his rights for some robust exercise.

The Guptas, too, are not averse to going to court. A few months back they obtained an urgent interdict against Malema and the EFF over threats of violence against them and their employees, as well as EFF attempts to force them to leave SA.

Yet they, too, have not sued Malema over the Dubai allegations. More tellingly, they have not taken to court the SA banks that closed their accounts, making their commercial operations well-nigh impossible.

While banks can legally close a customer’s accounts without explanation, there are plenty of grounds in the Bill of Rights to seek judicial relief if it seems that the banks are acting in collusion or with political motivations. Especially since the Guptas have several thousand affected employees.

But live by the legal sword, risk dying by the legal sword. Perhaps the Guptas and Zuma fear the fate of Knott-Craig – that the rigours of judicial interrogation will leave them exposed, embarrassed and humbled.

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