/ 15 December 2017

Zuma runs out of legal road – and public money to build more of it

In her State of Capture report


President Jacob Zuma has stalled the establishment of a commission of inquiry on state capture for more than a year, but may have to reach deep into his pockets to engineer any further delays — which would only strengthen the case against him.

On Wednesday the high court in Pretoria found that Zuma’s attempt to overturn through legal review former public protector Thuli Madonsela’s State of Capture report “was a clear nonstarter”.

“Our view is that the president had no justifiable basis to launch the review application in the circumstances” that included a threat to democracy and the opportunity to do something about it. “In doing so, he was reckless and acted [unreasonably],” the court said, in awarding personal costs against Zuma.

That, lawyers for opposition parties involved in the litigation suggested, could make things interesting. Though Zuma has the option to appeal, opponents could demand that he personally puts up security to cover the legal costs of such an appeal.

Opposition parties may even argue that Zuma should be forced to show he could personally pay back not only their costs but also those of his own side, if he uses the state attorney and advocates paid for by the presidency.

“It would be a novel argument, but we could try,” said a lawyer, who had not yet consulted clients after the ruling and so would not speak for attribution.

The courts may be sympathetic to an attempt to deny Zuma public funding to continue a fight he should never have started. Last Friday, in a matter that revolved around former prosecutions head Mxolisi Nxasana, the high court described what it called a broad pattern of Zuma’s conduct in litigation over the years: defending what turns out “to have been the indefensible all along, banking on any advantage that the passage of the time may bring” .

There has never been any investigation into the allegations by former deputy finance minister Mcebisi Jonas that the Gupta family offered to remove the “deputy” from his title, the court said, “notwithstanding a legal obligation to do so”.

In that case, as well as the similar allegations by former MP Vytjie Mentor, failure to act may have infringed anti-corruption laws that demand action when corruption is suspected, the court said.

Such a failure can come with a jail term of up to 10 years.

Separate from that failure to act, Madonsela had already made preliminary or prima facie “findings that point to serious misconduct or impropriety on the part of the president, the Gupta family” and others, the court said this week.

Elsewhere, it noted “compelling” evidence of a relationship between Zuma and the Guptas that amounted to state capture.

“What considerably strengthens the prima facie case of misconduct and impropriety is the failure of the president to address the complaints when requested by the public protector to do so,” the court said.

With his various obligations now made clearer, further appeals and delays are likely to be at Zuma’s own risk.

He does, of course, have another option. “He could set up the commission,” said Madonsela in court after judgment was handed down on Wednesday.

By Thursday the ANC was expressing the hope that Zuma would do just that.

In the absence of an appeal, Zuma has until mid-January to proclaim a commission of inquiry, which will then have a mid-2018 deadline to complete an investigation that will be aided, extraordinarily for such a commission, with powers of search and seizure.

If and when the time comes for such a commission to question Zuma, it may well require extraordinary powers, as well as extraordinary patience, a close reading of Zuma’s conduct on state capture to date suggests.

In the space of one day in October, in a single document, Zuma said that the State of Capture report was not completed and that if it had been completed it should be released — but also said that it had been completed, which was unfair because it had been completed without an opportunity for him to say his say (though, in reality, he had had multiple chances to do just that).

Days later, Zuma engaged his prior self in vigorous legal argument.

Previously, Zuma explained, he may have made what seemed like a concession that undermined his own case. However, what he had previously said had been wrong in law, he now said, and he could not be held to a concession that was wrong in law.

That particular skirmish with himself, though, was simply a warm-up for the main event of legal weirdness that the high court in Pretoria on Wednesday said required a stern rebuke in the form of a personal costs order against Zuma.

Things got really strange when it came to the “typing error”.

In October last year, Zuma was furiously fighting against the release of Madonsela’s report on state capture. On October 24, Zuma filed papers including the assertion that, if Madonsela had indeed completed her report, “then in that event the report should be released”.

The release of the report was the exact opposite of what Zuma actually sought.

There was just one problem, the court said this week: everyone else knew — and Zuma should have known — 10 days earlier that the report was, in fact, final. In other words, Zuma had blown his own action completely out of the water.

So Zuma told the court that the argument for the release of a report, if it was final, had been a typing error. He had intended to say that if it was final then it should “NOT” be released, he now held.

Except that this could not be true, the court judged on Wednesday, because the rest of Zuma’s arguments flowed from the assertion that a final report should be released. If there had been a typing error about the release of the report, then that gave rise to an “irreconcilable contradiction” with his other arguments.

“This is where the president comes unstuck,” said the court, though it stopped short of finding that he had committed perjury, saying this had not been its task.

Zuma remained somewhat unhinged, legally. He now found himself arguing that a report that he said was not final should be reviewed and set aside, even though the law is clear that only final actions are subject to that kind of review.

Painted into a corner, where “on all possible interpretations, the report had to be released”, Zuma finally conceded the fight and offered to pay the costs of the entire affair — with money from the state.

Yet Zuma had been “clear and unambiguous” that he was defending himself as a person, not as a president, said the court, and he had never once argued that his office would suffer if the report was released.

Between his conduct and the personal nature of his interest, it 
was only appropriate that Zuma should pay costs out of his own pocket for his failed attempt to interdict the release of the report, the court said.

That was separate from the personal costs order against Zuma for his application to review the report after it is eventually released.