The case for JZ to pay his own legal costs
President Jacob Zuma is fighting tooth and nail not to pay legal fees from his pocket after he attempted to block the release of the State of Capture report, which flags potential wrongdoing on his part and some members of his Cabinet.
Zuma – who has been described as a “selfish litigant” who chose to “lie” in his bid to block the release of the former public protector’s report – insists it is ultimately taxpayers who must foot the bill.
In court papers filed with the Pretoria High Court on Friday, Zuma says he should not be ordered to pay in his personal capacity because the former public protector’s investigation was aimed at the exercising of his duties as a member of the executive.
Accordingly, his submission reads, the investigation by the former public protector dealt with matters relevant to the work of government. He relies on his interpretation of the State Liability Act, that debt must be charged against the appropriate budget for the department concerned, in this instance the office of the presidency.
“The state attorney must recover its costs from the office of the president. The accounting officer of the presidency is responsible for implementing the PFMA [Public Finance Management Act].”
Furthermore, he advances an argument that there was no evidence to suggest that he violated the Executive Members’ Ethics Act and therefore the state attorney was obliged to perform work on his behalf in his capacity as president.
Zuma was responding to an application by the DA, Economic Freedom Fighters, Congress of the People and United Democratic Movement for him to be held personally liable for all legal costs, including that of the state attorney.
The parties argue that Zuma consistently abused the office of the state attorney in order to protect his personal interests. They believe, regardless of whether or not he acted in his official capacity, he in fact acted recklessly and in complete disregard of his constitutional responsibilities.
Zuma should have been represented by his personal attorney, like Cooperative Governance Minister Des Van Rooyen had been, instead of being represented by the state, the parties said.
They submit that he interfered with the functioning of the former public protector with his interdict; then attempted to delay the finalisation of the matter in the guise of seeking clarity on whether the report was final; and at worst committed blatant perjury by blaming a “typing error” for his concession that the report be released if it were final.
“The president’s application was a cynical attempt to inhibit, undermine and sabotage the [former] public protector. Not only was this inconsistent with the office held by the president, it also amounts to an abuse of his office,” the opposition parties said.
They insist that the allegation of a typing error is demonstrably false and that what most likely transpired was a change of stance after Zuma recognised the consequence of his concession.
“The fact that the president has conducted himself in this fashion proves his mendacity, and is justifying a personal cost order.”
They point out that Zuma was invited to withdraw his interdict to prevent the wastage of costs by all parties, including taxpayers, but he opted to forge ahead and in the process deceived the court.
“Surely Zuma cannot conceivably argue that when he lied under oath before his God and sought to deceive the court, at huge expenses to the taxpayers, he did so ‘in his capacity as president’. When he took the oath, he said ‘so help me God’ and not ‘so help the president of the Republic of South Africa’,” the parties said.
The fact that Zuma had asked for “an absurd and disingenuous” postponement on an urgent application, before inexplicably withdrawing, has also come back to haunt Zuma, as the parties submit this amounted to abuse of process to delay the resolution of the dispute.
“The fact that the parties were compelled to incur necessary expenses relating to a meritless postponement application illustrates clearly that the application was not brought in the public interest, but in order to safeguard the personal interest of Zuma,” they submitted.
Zuma had also failed to initially oppose the parties’ intentions for him to be held personally liable for the costs.
The DA says in its papers that Zuma’s conduct was a direct betrayal of his duties in acting as the “personification of the country’s constitutional project”, but rather a “selfish litigant” seeking to use every move – whether unlawful or not – to advance his personal interests.
“The only appropriate response is a punitive order requiring the president to bear all the costs of this litigation – both his own and that of all other parties – in his personal capacity,” the party said.