Weighing the heavy cost of Zuma’s legal battles
He will have to refund the state if a court one day finds him guilty
EXACTLY how much the SA public has paid for former president Jacob Zuma’s countless futile legal battles is shrouded in mystery.
Up to this point, Zuma himself has refused to tell parliament how much his “Stalingrad” strategy – fighting every point in his battle to avoid prosecution – has cost.
Under threat of legal action, President Cyril Ramaphosa revealed this week that taxpayers have spent at least R15.3-million in funding Zuma’s campaign to avoid prosecution.
This was money spent by Zuma fighting to ensure the “spy tapes” weren’t released to the public. The spy tapes were cited by prosecutors as the reason for dropping criminal charges against Zuma in 2009.
The DA challenged the decision to drop charges – and after fighting this issue for years, Zuma conceded at the last minute. At much cost, it turns out.
It still remains unclear how much Zuma spent on his numerous efforts to overturn the state of capture report, issued by former public protector Thuli Madonsela in October 2016.
This week, the Ramaphosa’s office confirmed that, should Zuma be criminally charged again and go on trial for corruption, the public will continue to pay for his defence.
However, Ramaphosa’s office said that if Zuma were convicted, he would have to repay the money spent on his legal fees.
Ramaphosa previously said he wouldn’t appeal a court ruling that Zuma should personally pay the substantial legal costs of his failed court campaign to overturn Madonsela’s report. That means Zuma must fund his own appeal – or pay back fees estimated at more than R10-million.
The revelation this week that R15.3-million has been spent on just one pillar of Zuma’s legal challenge raises the question of how much his legal tactics have cost South Africa thus far.
In December three Pretoria high court judges dismissed Zuma’s bid to retain control of choosing which judge would lead the inquiry into state capture.
But Judge President Dunstan Mlambo and his colleagues did more than just find that Zuma had litigated recklessly and with the apparent intention to delay the inquiry into the Guptas’ influence over him and other officials.
For the first time in South African history, a court made a personal costs order against a head of state – a severe sign of judicial displeasure. “In our view, the president had no justifiable basis to simply ignore the impact of [state capture] corruption on the South African public.
“His conduct also falls far short of the expectation on him as head of state to support institutions of democracy such as the public protector,” ruled Mlambo.
“This is a proper case where a personal costs order is justified and should be granted.”
Just days earlier, Mlambo had ruled that the R17-million “golden handshake” Zuma had given former national director of public prosecutions Mxolisi Nxasana to resign was unlawful, and the subsequent appointment of Shaun Abrahams was invalid.
But it was the court’s assessment of Zuma’s litigation strategy that hinted at the personal costs order that was to come.
“There is the broader pattern of the president’s conduct in litigation: of defending what ultimately turns out, on the president’s own concession, to have been the indefensible all along, banking on any advantage that the passage of time may bring.
“This pattern has played out in well-publicised cases in the courts and would be naive to ignore.
“We refer here particularly to the Nkandla case and the spy tapes case,” the judges said.
Five days later, Mlambo hit Zuma with two personal costs orders – one for his failed bid to interdict the release of Madonsela’s state capture report, and another for his failed attempt to review that same report.
Eric Mabuza, a lawyer for the United Democratic Movement, says the costs in each of those cases are estimated at more than R5-million.
That means Zuma is facing a R10million bill – excluding any liability that may arise from the spy tapes case – and if he wants to appeal that decision, he will have to fund that appeal with his own money.
Ramaphosa’s spokesman, Tyrone Seale, says the president “will abide by the decision of the court on costs”. In other words, Ramaphosa won’t appeal the costs orders given against his predecessor.
Zuma has not yet lodged an appeal against these costs orders in his personal capacity.
Of course, this tactic isn’t new. Zuma’s willingness to lavish millions on futile litigation started long before he was elected president.
Even after he was axed as deputy president in 2005, he received millions to fight the corruption case against him.
However, it seems that the state will still be called on to fund Zuma’s defence – even though he’s now out of office.
Seale says Zuma “applied for legal representation at state expense in respect of the criminal proceedings” way back in 2006, when he was first charged.
“The application was approved by the presidency based on advice by the state attorney’s office and the [then] department of justice and constitutional development.”
But there is an important caveat for taxpayers, who’ve long since tired of forking out money for Zuma.
Seale says Zuma “signed an undertaking to refund the state if he is found to have acted in his personal capacity and own interests in the commission of the offences with which he was charged”.
The revelation this week of how much was spent on the spy tapes case is welcome.
Last year, the DA asked the Western Cape High Court to force Zuma to reveal how much was spent.
In January, DA leader Mmusi Maimane wrote to the state attorney, offering to withdraw that application if Zuma handed over the information about his costs.
When the state attorney revealed this week that the cost had been R15.3-million, it said it now regarded the DA’s case as settled.
But Maimane, isn’t satisfied. He wants details of how exactly that money was spent, and whether it includes the cost orders given against Zuma.
“We want to claim that money back, and we want to ensure that Zuma is held personally liable.”
The bottom line is that the Zuma presidency was defined by futile and expensive legal campaigns – with a disturbing lack of clarity on how this money was spent.
Financial statements show that between 2009 and 2017, the presidency’s legal bills amounted to R65million – but this does not appear to include the costs Zuma was ordered to pay after losing multiple cases.
The scant information that has emerged is alarming.
Advocate Ben Winks filed 19 applications under the Promotion of Access to Information Act in December 2016, after witnessing how Zuma sought to block Madonsela’s report.
“It frankly just pissed me off,”
Winks says.
“There were absolutely no prospects of success in that case, and it was clearly being pursued to protect [Zuma’s] personal interests.
“It was at that point that I decided to find out just how expensive Zuma has been to South Africa.”
Winks says there are two key points of interest. First, despite the hefty sums involved, state spending on legal fees appears to be exempt from any constitutional limits on public procurement.
“Second, I don’t believe the Constitution allows public officials to use state funds for private litigation, though this is plainly happening in practice.”
Besides asking about the costs attached to Zuma’s big legal battles Winks also asked about the costs of Zuma’s state-funded defamation cases against cartoonist Jonathan Shapiro (Zapiro) and others. (Zuma withdrew the defamation cases and agreed to pay the legal costs of the media houses.)
Months after Winks’s applications were lodged, the justice department agreed to hand over the information as it became available.
To date, Winks has received invoices relating to just two cases: Zuma’s failed challenge to Madonsela’s order that he pay back the Nkandla money; and his abortive bid to block the release of the state capture report.
In the end, Zuma conceded that he was wrong not to act on Madonsela’s recommendations.
The invoices show this case cost taxpayers R3.2-million, with senior counsel Jeremy Gauntlett being paid R688 000 to urge the Constitutional Court to find that Zuma’s conduct had not violated the constitution. He failed.
It got worse though. Zuma (or, rather, the public) was ordered to pay the legal costs of the EFF and other parties involved in the case. If the costs of those parties match what Zuma spent, that bill would be estimated at R9.6-million. The other invoice showed that the failed bid to interdict the release of the state capture report cost another R1.1million.
Given Zuma’s habit of spending recklessly on lawyers to defend the indefensible, you can expect taxpayers to be the poorer if he goes to court to face corruption charges.
•This piece first appeared in Financial Mail.
His conduct also falls far short of the expectation on him as head of state