Pay­ing for court cases

The Witness - - OPINION - • Martin van Staden is a le­gal re­searcher at the Free Mar­ket Foun­da­tion and is pur­su­ing a mas­ter of laws de­gree from the Uni­ver­sity of Pre­to­ria. Martin van Staden

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.

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