/ 13 April 2021

R15-million headache for Zuma as SCA rules on his private legal fees

State Capture Inquiry: Zuma's Third Day On The Stand
Former president Jacob Zuma leaves the state capture commission of inquiry on his third day of testifying after his legal team asked for a postponement. Photo: Thulani Mbele

Former president Jacob Zuma has suffered another legal defeat, with the supreme court of appeal (SCA) on Tuesday dismissing his appeal against a high court ruling that the state attorney recover at least R15-million it paid for legal fees in his corruption case.

The appellate court found that the decision that the state attorney pay for Zuma’s attorney and counsel in the fraud and corruption case stemming from payments he received from French arms dealer Thales and tenderpreneur Schabir Shaik in the 1990s was unlawful.

The SCA ruled that the earlier decision of the high court that the state attorney recover the money from Zuma — which was delivered in response to an application by the Economic Freedom Fighters and the Democratic Alliance — was valid.

The payments for Zuma’s legal fees in the corruption case were first made to his lawyer, Michael Hulley, in 2006, and have continued during the protracted legal battle between Zuma and the state over the case.

The payments included Hulley and four specified counsel (two senior and two junior) and were made on the basis of an undertaking by Hulley that Zuma would repay the money “should the court find that [he] acted in [his] personal capacity and own interests in the commission of alleged offences”. 

In 2008, the state again funded the same legal team, which represented Zuma until the case was withdrawn by the then national director of public prosecutions, Mokotedi Mpshe.

But the DA went to court over the discontinuation decision and, seven years later, won a successful review application setting aside the withdrawal of the case.

After the case was reopened in March 2018, the presidency revealed that a total of R15.3-million had been spent on Zuma’s private legal team. This was made up of R7-million before the case was withdrawn and another R7.7-million after it was reopened.

In March 2018, the DA went to the high court to challenge the legality of the payments, and was joined by the EFF in the case, which they won.

Zuma appealed to the SCA, arguing that the court was wrong to have found that the parties brought their applications on time; that it was wrong to find the state attorney had acted unlawfully in funding him, and that the decision that it was fair and equitable for him to pay back the money was wrong.

In its judgment, the SCA found that the state had unlawfully paid all of Zuma’s legal costs in a number of other matters, including paying the legal teams of opposing parties in matters where the courts had ruled against the former president.

These included unsuccessfully seeking to set aside certain search and seizure warrants issued in October 2005 (R9 676 176); unsuccessfully seeking to set aside a request for co-operation from Mauritian authorities made in April 2007 (R4 791 437);  unsuccessfully seeking to set aside the 2007 indictment (R2 649 512) and unsuccessfully opposing the DA’s review of the 2009 decision to discontinue the prosecution (about R7.8-million).

These payments, totalling about R25-million, “lacked any proper legal basis.”

The SCA found that the “funding tap” had been opened for Zuma during the Shaik trial, at which the state funded his legal team, which conducted a watching brief. 

“To have granted Mr Zuma a blank cheque to pay private lawyers is egregious. A web of maladministration appears to have made that possible. Many of the payments have no asserted legal basis whatsoever,” the SCA said.

“Mr Zuma has been significantly enriched by those payments. It would be naïve for a court to simply ignore all of this. The effect on state resources can also not be overlooked,” it said.

“The decisions were thus ultra vires and consequently unlawful, unconstitutional and invalid,” the SCA said.

The court said simply stopping further payments was not enough and that money needed to be recovered.

The SCA confirmed the court’s decision that the state attorney should draft a full account of the payments, under oath, and recover the money from Zuma.

“A repayment order may well be essential to remedy the abuse of public resources, vindicate the rule of law and reaffirm the constitutional principles of accountability and transparency, especially by a former incumbent of the highest office in the land. Simply setting aside the decision to pay, without ordering an accounting and repayment, would achieve none of those crucial remedial objectives,” the SCA said.

The SCA was also scathing of Zuma’s allegations that the three judges who had heard his case had “left their judicial station,” saying that his unfounded claims “scandalised” the court.

“There is nothing on the record to sustain the inference that the presiding judges in this matter (or at a more generalised level in other matters involving Mr Zuma) were biased or that they were not open-minded, impartial or fair. The allegations were made with a reckless disregard for the truth and persisted during argument. They ought not to have been made at all,”’ the court said.

The SCA also awarded punitive costs against Zuma.

Read the full judgment below:

SCA Judgment: Zuma v Democratic Alliance and Economic Freedom Fighters by Mail and Guardian on Scribd