Zuma not entitled to legal aid, say experts
In terms of the South African Constitution, everyone is equal before the law and has the right to equal protection — and this includes Jacob Zuma.
In terms of the South African Constitution, everyone is equal before the law and has the right to equal protection — and this includes Jacob Zuma.
So how fair is a stay of prosecution or withdrawal of graft charges against him, based on the claim of a lack of funding, even though the former president receives a salary of almost R3m?
This is the same man who for the last decade has been using taxpayers’ money to fight corruption charges, and comes at a time when, according to Public Enterprises Minister Pravin Gordhan, the country is estimated to have lost R100bn through state capture.
Zuma is set to make his second appearance in the High Court in Durban on Friday, where he is facing one charge of racketeering‚ two of corruption‚ one of money laundering and 12 charges of fraud.
Two weeks ago, he pleaded poverty, saying he did not have the “means to engage with the court processes” regarding his prosecution. His lawyers then wrote to the National Prosecuting Authority requesting a stay of prosecution pending an outcome on whether the state will continue to pay his legal fees.
This request has been denied by National Director of Public Prosecutions Shaun Abrahams, who said the issue must be ventilated in court on Friday before a judge.
For those in SA who really do not have the means to pay for legal representation, Legal Aid SA is mandated through the Constitution to “help the poor get tax-funded legal assistance”. Zuma certainly does not fall into this category.
Among the criteria for obtaining legal aid is that you must earn less than R5,500 a month after tax, or be part of a household that earns less than R6,000 a month.
Would any other person be entitled to such a stay of prosecution, as Zuma is asking for, pending the outcome of the DA’s application? Visiting associate professor of law at Wits University James Grant says they would not.
The DA is seeking to have Zuma cover his own legal fees and pay back the money the state has already forked out for the various legal processes.
“Nobody else would have the right … [and ] he has no right, otherwise he wouldn’t simply be asking for it [a stay of prosecution], he would be insisting on it,” Grant says.
Zuma will ask the judge for the temporary stay of prosecution, but Grant says he would be surprised if the court granted Zuma this reprieve.
The Council for the Advancement of the South African Constitution’s Lawson Naidoo shares Grant’s view.
“His continuous appeals on the spy tapes was an abuse of legal processes. Had he not had the luxury of having his legal costs covered by the state it would not have happened,” Naidoo says. “Therefore he’s not equal to others who are facing criminal charges.”
Zuma spent 10 years trying to fight facing prosecution by using the so-called spy tapes as part of his defence, alleging that the state’s corruption case was politically motivated. However, in the Supreme Court of Appeal Zuma himself finally conceded that it was irrational for the former acting national director of public prosecutions Mokotedi Mpshe to have dropped the charges against him in 2009.
Naidoo says it is up to the court to put its foot down and ensure the corruption case goes ahead on Friday.
It has been argued that Zuma should be allowed the temporary stay of prosecution, because people such as former Hawks head Anwa Dramat had their matter postponed based on the basis that they were fighting to have the state pay their legal fees.
But Grant and Naidoo argue that this is a different matter.
“The question with Dramat and others was whether they were acting in the course and scope of their employment. The charges levelled against Zuma cannot possibly have fallen within his course and scope of employment,” Grant says.
IF HE HAD A RIGHT, HE WOULDN’T SIMPLY ASK FOR A STAY OF PROSECUTION, HE WOULD INSIST ON IT