The high court battle over who should pay former president Jacob Zuma’s legal fees could be precedent-setting — by establishing principles for when and how the state will pick up the tab when officials are charged with corruption in the future.
The judgment could be especially relevant following the outcome of the Zondo commission into state capture, which will likely implicate high-level government officials in possible criminal conduct.
The case was taken to the Pretoria high court by the Democratic Alliance (DA), which sought to set aside the state attorney’s decision to fund Zuma’s legal costs, which already amount to R15.3-million.
Sean Rosenberg SC, counsel for the DA, pointed out on Wednesday that the “issue of the circumstances under which government functionaries facing corruption charges are entitled to legal assistance at state expense … cries out for consideration by this court”.
Zuma’s “Stalingrad” legal strategy since he was charged with corruption in 2007 has cost the public millions, the DA told the court. The public should not have to foot the bill of Zuma’s “frivolous” strategy to fend off his prosecution, and Zuma should pay back the R15.3-million already spent on his legal fees, the DA said.
Zuma faces 16 charges of fraud, corruption, money-laundering and racketeering related to the multibillion-rand arms deal. The charges were dropped in 2009 but reinstated in March this year. Since he was first charged, Zuma has litigated a number of times on different aspects of his prosecution, delaying the start of his trial.
President Cyril Ramaphosa mentioned the figure of R15.3-million in Parliament. Ramaphosa said the state had been funding Zuma’s legal costs since 2006, following Zuma’s request that his legal bills be funded by the state.
The Economic Freedom Fighters (EFF) — which joined the DA in the high court — argued that, according to its calculations, Zuma had likely actually spent more than R32-million on litigation so far.
In his heads of argument, EFF counsel Tembeka Ngcukaitobi said the state’s decisions to fund Zuma’s litigation in 2006 and 2008 were “surrounded by a web of maladministration and personally enriched Mr Zuma at great public expense”.
On Wednesday, Ngcukaitobi likened this to the Nkandla saga, saying that the EFF’s call was the same in both cases: “Pay back the money.”
Thabani Masuku SC, counsel for the former president, argued on Tuesday that the parties had unduly delayed bringing their applications, in a case that dates as far back as 2006.
Had the DA brought the application as soon as it was made aware of the funding of Zuma’s litigation, the former president may well have been made aware that the state attorney is not authorised to grant him legal assistance and that he would have to source funding elsewhere, Masuku contended.
In heads of argument, Rosenberg rejected Masuku’s claim that the party knew for years about the state’s decision to fund Zuma’s cases. The DA only learned the full extent of the state’s funding in 2018, he said.
“What takes this case outside the norm is the concept of a continuous wrong … The wrong that began in 2006 is continuous,” Ngcukaitobi argued on Wednesday in response to Masuku’s contention of undue delay.
“We know that Mr Ramaphosa says he will continue funding in the future. We know that Mr Zuma … expects funding into the future … So the delay point is a nonpoint,” he added.
Masuku also argued that, in terms of the State Attorney Act, the state attorney has the discretion to act for a litigant in a matter in which the government is a party or in which it has an interest in a matter.
Masuku further argued that whether the state assists or not is not dependent on the nature of the allegation. But Rosenberg countered that financial assistance can only be given to deal with allegations emanating from acts related to the official duties of a state functionary.
Generally, corruption is not a matter of duty, he said.
Rosenberg closed his argument on Wednesday by reiterating that the DA was seeking a personal cost order against the former president. The use of unlimited state funding to enable “luxurious and never-ending litigation” is an issue that calls for determination by the court, he added.
Personal cost orders, one way in which public officials are held accountable by judicial remedies, have only recently been regularly enforced by the courts.
In the past two years, in at least four high-profile cases — two against Zuma, one against former SABC chief operating officer Hlaudi Motsoeneng, and another against former social development minister Bathabile Dlamini — personal cost orders were granted by the judges.
In all four instances the personal cost orders were granted on the basis of reckless litigation and pursuing frivolous cases at the state’s expense.