Zuma’s costs highlight gap

In raising questions about the amount spent by the state on the legal fees of former president Jacob Zuma, the DA and EFF have exposed a hole in executive regulation that is ripe for further exploitation by opportunistic politicians.

On Tuesday, the DA announced that in answer to its questions the state attorney had revealed that the Presidency had spent R15.3m on Zuma’s legal fees in the nine-year saga over what are known as the spy tapes.

President Cyril Ramaphosa repeated this in the National Assembly on Wednesday during question time.

This arrangement, said Ramaphosa, dated back to 2006 when Zuma had entered into an agreement with the government that the money would be paid back if he was found to have been personally responsible for the crimes of which he was accused.

The question immediately posed by the EFF was: on what legal provisions had the Presidency relied to make such an agreement? While Ramaphosa was vague and said he would provide further details in a week, the answer to that question appears to be that there are none.

There is no explicit provision that members of the executive should have their legal fees paid for by the state when criminal charges are levelled against them in their personal capacities.

From the anecdotal evidence that Business Day has been able to gather, when such matters have arisen in the past they have been dealt with through a legally binding agreement between the accounting officer of a department (the director-general) and the political principal that the state will pay legal costs to defend charges that arise in the course of their duties. Should the politician be convicted, he or she is liable for the costs and must pay these back to the state.

The rationale is to provide protection for the accounting officer, who needs some cover when accounting to the auditorgeneral that such expenditure was not fruitless and wasteful. But the rationale is also clearly a case of the government shielding the powerful from personal accountability and consequences at taxpayers’ expense. The DA is convinced that such agreements hold no weight and has begun legal processes to recover the money. In this it will certainly have the support of the EFF, which is raising a similar concern, and in general the support of the public, who are tired of the parade of untouchables who, regardless of judgments against them, have suffered no personal consequences.

Zuma’s other wasteful and fruitless litigation — on Nkandla and on the public protector’s report on state capture, which he both tried to interdict and then take on review — were in his capacity as state president. In the latter, he faces a personal costs order, which may lighten the blow to the state, but otherwise the Presidency has had to cough up.

The growing number of cost awards by the courts against those who blatantly neglect their constitutional and legal responsibilities shows that judges too are fed up with this kind of abuse. It will hopefully deter others in future.

Ramaphosa has promised to provide more details in the days to come. When he does, he must explain whether the arrangement between Zuma and the Presidency will continue. Zuma, should he finally be charged for the spy-tapes saga, still has many legal bills ahead before this case is concluded.

He will very likely also face others, should he be charged with corruption or treason for handing over his presidential powers to a group of people he called his friends.

Former minister of mineral resources Mosebenzi Zwane and former public enterprises minister Lynne Brown would no doubt also be angling to reach similar agreements with the directorsgeneral in their departments. Should this be allowed, many others could follow.

It is time to draw a line and let people take the rap for their own actions.

THE RATIONALE IS ALSO CLEARLY A CASE OF THE GOVERNMENT SHIELDING THE POWERFUL