Was the High Court correct to find that former president Jacob Zuma was “reckless” when he launched a legal challenge against former Public Protector Thuli Madonsela’s State of Capture report? That judgment, delivered in December 2017, found that Zuma should be personally liable for paying the R10-million legal costs associated with his challenge.
This is the issue that the North Gauteng High Court is considering this week, in proceedings that started on Thursday.
The first victory of the day went to Team Zuma, after Gauteng Judge President Dunstan Mlambo granted the former president’s lawyers the right to argue that Zuma should be allowed to appeal the December 2017 judgment against him.
Zuma’s application in this regard was opposed by four opposition parties, led by the EFF, and the Council for the Advancement of the South African Constitution (CASAC).
While Zuma himself was absent from the courtroom, EFF leader Julius Malema and UDM leader Bantu Holomisa both made appearances. Outside the court, EFF members picketed in support of the party’s lawyers, who were also leading the EFF’s challenge to the apartheid-era Riotous Assemblies Act on the same day.
Arguing on behalf of the EFF, veteran advocate Dumisa Ntsebeza said that for Zuma to seek leave to appeal now was unreasonable given the “inordinate delay” in doing so.
Advocate Dali Mpofu – on this occasion appearing not for the EFF, but for the UDM and Cope – said that the fact that President Cyril Ramaphosa had withdrawn an appeal on the matter on behalf of the Presidency in April 2018 was evidence that the case had been “terminated” and “we must go home”.
Zuma’s lawyer Muzi Sikhakhane would subsequently argue that the reason why Zuma took so long to bring the application to appeal was due to the personal upheaval he experienced after stepping down as president, as well as a “miscommunication” with Zuma’s previous attorney Michael Hulley.
CASAC’s Michelle le Roux told the court that the former president’s application was part of “a familiar pattern of litigation by Mr Zuma”, in which he sought to “delay and avoid paying the costs order”.
The costs at stake here are substantial – R10-million, which Zuma describes in his heads of argument as an unreasonable and “punitive” financial burden.
Arguing for Zuma, advocate Thabani Masuku – who repeatedly referred to Zuma as “president” rather than “former president”, and had to correct himself – contended that the arguments made by the opposition parties and CASAC constituted “unbelievable prejudice” to Zuma and were motivated by “antipathy” towards the man.
“You have been told that the person before you is a litigious person,” Masuku told the court Bench.
After brief arguments on both sides, Judge Mlambo ruled on behalf of the three-judge Bench in favour of Zuma’s application for intervention, granting his lawyers the right to make arguments as to why he should be allowed to appeal.
However, Mlambo also ordered Zuma to pay the costs for his successful application to intervene – which will be an unwelcome addition to the former president’s spiralling legal bills.
Getting down to the nuts and bolts of Zuma’s arguments against the December 2017 judgment, advocate Sikhakhane told the court that Zuma was entitled to challenge Thuli Madonsela’s recommendations regarding State Capture because he was “legitimately concerned” that Madonsela’s remedial action would not “pass Constitutional muster”.
In an unintentional moment of dark comedy, Sikhakhane said that Zuma was concerned that if he followed through with Madonsela’s recommendations and their constitutionality was subsequently challenged in court, he would “waste taxpayers’ money”.
In particular, Zuma’s lawyers contend that Madonsela’s directive that Chief Justice Mogoeng Mogoeng should choose the presiding judge over the State Capture inquiry – rather than then-president Zuma – gave Zuma reasonable cause to worry that it would be unconstitutional for another branch of government to undertake this duty.
“Is it illegitimate or reckless for a head of state to be anxious about ‘how do I go about this to protect a political decision’?” asked Sikhakhane.
The advocate said Zuma was prejudiced by “the assumption we are beginning to find in the body politic that when a person is accused, they are guilty”.
When considering Zuma’s challenge to the State of Capture report, Sikhakhane said, “let’s forget that we don’t like him”.
Criticisms of Zuma’s so-called “Stalingrad tactics” in the courtroom did not amount to substantive legal arguments, Sikhakhane contended.
“There are prospects of success on appeal,” the advocate concluded.
The opposing counsel disagreed.
Advocate Ntsebeza argued that the former president’s delay in filing for the right to appeal could not be brushed over, dismissing the “lackadaisical” defence cited by Zuma that he was “consumed with the political events” surrounding his resignation to ensure a smooth transition of power.
“This scant justification for his delay cannot suffice,” Ntsebeza said, questioning exactly what challenges Zuma faced at the time.
“He is an ordinary citizen and is subject to the ordinary rules of litigation.”
Ntsebeza argued that it was legitimate for the court to label Zuma’s legal behaviour “reckless” because the former president had previously attempted to urgently interdict the release of the State of Capture report, before abandoning that application.
“He suddenly is now the victim!” Ntsebeza exclaimed.
“It’s a mischaracterisation of what this court’s finding was on recklessness.”
The fact that Zuma has since publicly questioned the very notion of whether State Capture exists is evidence that Zuma did not respect Madonsela’s State Capture findings in the way that his lawyers claim, the advocate contended.
Nsebeza said making Zuma personally liable for paying the R10-million legal costs would be in keeping with recent efforts by the courts to discourage vexatious litigation.
“The time has come to hit them where it hurts the most,” Ntsebeza said.
Mpofu, meanwhile, argued that it was right for Zuma to personally bear the costs of his litigation while president because the actions Zuma took in furtherance of State Capture were also undertaken in his personal capacity.
The attempt by Zuma to delay addressing State Capture through litigation was “the unreasonable action of an unreasonable president”, Mpofu suggested.
He said that it was as a direct result of Zuma’s stalling tactics that the current Zondo Commission investigating state capture has only recently begun its work – whereas Madonsela had recommended that such an inquiry get underway by November 2016.
Were it not for Zuma’s litigation, said Mpofu, “we would know today who took the billions”.
The DA’s advocate, Steven Budlender, continued arguments for the opposition, suggesting that Zuma’s counsel had failed to demonstrate the legal points on which the December 2017 judgment had erred.
If Zuma had been seriously concerned about the constitutionality of the Public Protector’s findings, Budlender said, he should have sought a declaratory order on the matter from the courts.
“That is what a responsible president would have done,” the advocate said.
Instead, Budlender said, Zuma’s legal challenge to the State of Capture report suggested that his real motivation was to delay instituting an inquiry into State Capture.
Responding to the opposing arguments, Masuku told the judges that the “real issue” was whether Zuma had behaved “so recklessly that he deserved to be punished” via the costs order.
Masuku reiterated that Zuma’s uncertainty over the constitutionality of Madonsela’s remedial action had led him to seek legal counsel which advised him to appeal.
“How can that be described as reckless?” he asked.
Masuku suggested that for the court to uphold such punitive costs against Zuma could have a “chilling effect” on public officials’ appetite for testing the constitutionality of aspects of governance.
Judgment in the matter has been reserved. DM