Paying for court cases
WITH unemployment and social welfare at crisis levels and an actively shrinking economy, one would expect the government to spend the few funds it forcefully extracts from taxpayers on comparatively important things, like grants, the police, or giving title deeds to emerging black farmers who lease state land.
Instead, our wise rulers try to outcompete one another in wasting scarce resources. The intuitive feeling that this is probably illegal, is correct.
As can be expected from a developing country like South Africa, our constitutional jurisprudence is not as mature and sophisticated as that of, say, Germany. Many of the cases that reach the Constitutional Court are relatively straightforward and deal with superficial legal questions mostly surrounding the rights in the Bill of Rights. It comes as no surprise, then, that there are sections in the Constitution that are, at least, under-emphasised, and at worst, completely ignored.
One such section is section 195, which sets out the principles and values that supposedly govern the public administration. This includes all spheres and branches of government and public enterprises. Section 195(1)(a), for instance, says that “a high standard of professional ethics must be promoted and maintained” by the public administration; subsection (b) provides that the “efficient, economic and effective use of resources must be promoted”; and subsection (c) says the “public administration must be development-oriented”.
Recent reports say that President Cyril Ramaphosa has authorised the further use of taxpayers’ funds to cover Jacob Zuma’s fees as he battles corruption charges in court. Over R13 million (thus far revealed) has been spent for Zuma’s fees surrounding court. It was revealed recently that Zuma has retained the services of another senior private advocate.
Is a high standard of professional ethics being promoted when the government fights to delay and obstruct proceedings aimed at discovering whether corruption is at play?
Is spending millions on (often private) advocates an efficient, economic or effective use of limited public funds? Is the public administration development-oriented when taxpayers’ money is being spent on judicial proceedings unrelated to the socioeconomic rights in the Bill of Rights? Obviously, no.
The public lust for Zuma’s imprisonment, I believe, is often misplaced. The man is innocent until proven guilty, which is a hallmark of our constitutional order and legal tradition. But this should not mean that the government is entitled to spend however much it wants, and conduct itself in whatever way it wants, to ensure an innocent verdict is returned. When accused government officials like Zuma opt to use private lawyers rather than salaried state advocates and attorneys, they should foot the entire bill themselves. And if they use state resources, no delaying or obstructive actions should be taken.
Lawyers are under a duty deeply rooted in legal tradition to give their accused clients the very best defence. This sometimes involves attacking the prosecution’s case on the basis of technicalities. This is fine, and arguably, necessary, to ensure the prosecution takes its obligation to prove guilt beyond a reasonable doubt seriously. When taxpayers’ money enters the fray, however, this analysis cannot be undertaken unmodified. The paying of tax is not a voluntary affair. Around the world, nobody has a choice about giving up a substantial amount of their money to the government, and mostly, they have no say in how the government spends their money. The state, in other words, has no money of its own. Everything it does, it does with funds from the people. It is for this reason that the Constitution contains provisions such as those in section 195, and the section 1(c) commitment to the rule of law. This latter commitment means the government must always act rationally, proportionally and effectively.
Zuma, now a private citizen, should pay his own legal costs. But because the charges against him emanate from when he was a top public servant, it probably makes sense for the state to cover his fees. In so doing, however, the state must adhere to the rule of law. This may mean that the government should cease funding after the trial court’s decision, and let Zuma cover the costs if there are appeals. The taxpayer cannot be expected to continue footing the bill.