Fees bat­tle could set a prece­dent

DA seeks to set aside state at­tor­ney’s de­ci­sion to fund for­mer pres­i­dent Ja­cob Zuma’s le­gal costs

Mail & Guardian - - News - Sarah Smit

The high court bat­tle over who should pay for­mer pres­i­dent Ja­cob Zuma’s le­gal fees could be prece­dent-set­ting — by es­tab­lish­ing prin­ci­ples for when and how the state will pick up the tab when of­fi­cials are charged with cor­rup­tion in the fu­ture.

The judg­ment could be es­pe­cially rel­e­vant fol­low­ing the out­come of the Zondo com­mis­sion into state cap­ture, which will likely im­pli­cate high­level gov­ern­ment of­fi­cials in pos­si­ble crim­i­nal con­duct.

The case was taken to the Pre­to­ria high court by the Demo­cratic Al­liance (DA), which sought to set aside the state at­tor­ney’s de­ci­sion to fund Zuma’s le­gal costs, which al­ready amount to R15.3-mil­lion.

Sean Rosen­berg SC, coun­sel for the DA, pointed out on Wed­nes­day that the “is­sue of the cir­cum­stances un­der which gov­ern­ment func­tionar­ies fac­ing cor­rup­tion charges are en­ti­tled to le­gal as­sis­tance at state ex­pense … cries out for con­sid­er­a­tion by this court”.

Zuma’s “Stal­in­grad” le­gal strat­egy since he was charged with cor­rup­tion in 2007 has cost the pub­lic mil­lions, the DA told the court. The pub­lic should not have to foot the bill of Zuma’s “friv­o­lous” strat­egy to fend off his prose­cu­tion, and Zuma should pay back the R15.3-mil­lion al­ready spent on his le­gal fees, the DA said.

Zuma faces 16 charges of fraud, cor­rup­tion, money-laun­der­ing and rack­e­teer­ing re­lated to the multi­bil­lion-rand arms deal. The charges were dropped in 2009 but re­in­stated in March this year. Since he was first charged, Zuma has lit­i­gated a num­ber of times on dif­fer­ent as­pects of his prose­cu­tion, de­lay­ing the start of his trial.

Pres­i­dent Cyril Ramaphosa men­tioned the fig­ure of R15.3-mil­lion in Par­lia­ment. Ramaphosa said the state had been fund­ing Zuma’s le­gal costs since 2006, fol­low­ing Zuma’s re­quest that his le­gal bills be funded by the state.

The Eco­nomic Free­dom Fighters (EFF) — which joined the DA in the high court — ar­gued that, ac­cord­ing to its cal­cu­la­tions, Zuma had likely ac­tu­ally spent more than R32-mil­lion on lit­i­ga­tion so far.

In his heads of ar­gu­ment, EFF coun­sel Tem­beka Ngcukaitobi said the state’s de­ci­sions to fund Zuma’s lit­i­ga­tion in 2006 and 2008 were “sur­rounded by a web of mal­ad­min­is­tra­tion and per­son­ally en­riched Mr Zuma at great pub­lic ex­pense”.

On Wed­nes­day, Ngcukaitobi likened this to the Nkandla saga, say­ing that the EFF’s call was the same in both cases: “Pay back the money.”

Tha­bani Masuku SC, coun­sel for the for­mer pres­i­dent, ar­gued on Tues­day that the par­ties had un­duly de­layed bring­ing their ap­pli­ca­tions, in a case that dates as far back as 2006.

Had the DA brought the ap­pli­ca­tion as soon as it was made aware of the fund­ing of Zuma’s lit­i­ga­tion, the for­mer pres­i­dent may well have been made aware that the state at­tor­ney is not autho­rised to grant him le­gal as­sis­tance and that he would have to source fund­ing else- where, Masuku con­tended.

In heads of ar­gu­ment, Rosen­berg re­jected Masuku’s claim that the party knew for years about the state’s de­ci­sion to fund Zuma’s cases. The DA only learned the full ex­tent of the state’s fund­ing in 2018, he said.

“What takes this case out­side the norm is the con­cept of a con­tin­u­ous wrong … The wrong that be­gan in 2006 is con­tin­u­ous,” Ngcukaitobi ar­gued on Wed­nes­day in re­sponse to Masuku’s con­tention of un­due de­lay.

“We know that Mr Ramaphosa says he will con­tinue fund­ing in the fu­ture. We know that Mr Zuma … ex­pects fund­ing into the fu­ture … So the de­lay point is a non­point,” he added.

Masuku also ar­gued that, in terms of the State At­tor­ney Act, the state at­tor­ney has the dis­cre­tion to act for a lit­i­gant in a mat­ter in which the gov­ern­ment is a party or in which it has an in­ter­est in a mat­ter.

Masuku fur­ther ar­gued that whether the state as­sists or not is not de­pen­dent on the na­ture of the al­le­ga­tion. But Rosen­berg coun­tered that fi­nan­cial as­sis­tance can only be given to deal with al­le­ga­tions em­a­nat­ing from acts re­lated to the of­fi­cial du­ties of a state func­tionary.

Gen­er­ally, cor­rup­tion is not a mat­ter of duty, he said.

Rosen­berg closed his ar­gu­ment on Wed­nes­day by re­it­er­at­ing that the DA was seek­ing a per­sonal cost or­der against the for­mer pres­i­dent. The use of un­lim­ited state fund­ing to en­able “lux­u­ri­ous and never-end­ing lit­i­ga­tion” is an is­sue that calls for de­ter­mi­na­tion by the court, he added.

Per­sonal cost or­ders, one way in which pub­lic of­fi­cials are held ac­count­able by ju­di­cial reme­dies, have only re­cently been reg­u­larly en­forced by the courts.

In the past two years, in at least four high-pro­file cases — two against Zuma, one against for­mer SABC chief op­er­at­ing of­fi­cer Hlaudi Mot­soe­neng, and an­other against for­mer so­cial de­vel­op­ment min­is­ter Batha­bile Dlamini — per­sonal cost or­ders were granted by the judges.

In all four in­stances the per­sonal cost or­ders were granted on the ba­sis of reck­less lit­i­ga­tion and pur­su­ing friv­o­lous cases at the state’s ex­pense.

In the past two years, in at least four high-pro­file cases per­sonal cost or­ders were granted by the judges

Let the payer be­ware: If the state con­tin­ues to fund for­mer pres­i­dent Ja­cob Zuma’s le­gal fees, it could open it­self up to the ex­pec­ta­tion that it will do so for oth­ers ac­cused of state cap­ture. Photo: Phill Ma­gakoe/Pool via Reuters

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