The judgment in former president Jacob Zuma’s failed bid to overturn a high court ruling that the state is not liable for his considerable legal fees  in his corruption case was handed down by judges Visvanathan Ponnan, Nambitha Dambuza, Tati Makgoka and acting judges Ashton Schippers and Trevor Gorven on 13 April 2021.

The punitive costs, said Ponnan, served “as a mark of displeasure and to vindicate the integrity of the court”.

A repayment order of the estimated R15-million bill might “well be essential to remedy the abuse of public resources; vindicate the rule of law; and reaffirm the constitutional principles of accountability and transparency, especially by a former incumbent of the highest office in the land”. 

Ponnan said that simply setting aside the decision to pay, “without ordering an accounting and repayment, would achieve none of those crucial remedial objectives. This, in any event, is less onerous than if Mr Zuma were asked to repay the amounts on demand as he had undertaken to do”.

The court said that the granting to Zuma by the State Attorney of “a blank cheque to pay private lawyers is egregious” and that “a web of maladministration” appeared to have made this possible”.

Zuma had been “significantly enriched by those payments”, said the SCA, and it would be “naïve for a court to simply ignore all of this”. 

“Allowing officials to resist being held accountable, by drawing on state resources to obstruct or delay a prosecution, subverts the Government’s (and the public’s) interest,” reads the judgment, which should sound as a warning to other officials who have followed Zuma’s example.

Zuma lashed out at two high court judges who heard his application to appeal, charging that they had been “biased”, but brought no factual evidence of this, said Ponnan.

“The contention, absent any factual foundation, that all three judges who heard the matter had left their judicial station, scandalises the court.

“If true, that all three either independently of each other, or worse still, acting in concert, would have renounced their judicial impartiality is a most serious allegation.”

Imputing bias to a judicial officer should not lightly be made, said Ponnan.

“Nor should the imputation of a political motive. This is not to suggest that courts are immune from criticism, even robust criticism for that matter. But, the criticism encountered here falls outside acceptable bounds.”

There was “nothing on the record to sustain the inference that the presiding judges in this matter (or at a more generalised level in other matters involving Mr Zuma) were biased or that they were not open-minded, impartial or fair”.

Zuma’s allegations about the judiciary “were made with a reckless disregard for the truth… They ought not to have been made at all”.

Having been made, they ought, said Ponnan, in response to the invitation from the EFF, to have been retracted. 

“To have persisted in the unjustified criticism of, not just the high court, but more generally the judiciary, is plainly deserving of censure. Little wonder then that the EFF submits that Mr Zuma should be penalised with a punitive costs order as a mark of this Court’s displeasure and to vindicate the integrity of the high court and the judiciary.” 

The state has, since 2006, forked out approximately R15-million to private attorney Michael Hulley who represented Zuma in the more than decade-long delay of his corruption trial.

The judges said the “scale and extent” of Zuma’s legal bills had been unknown until the review application was launched and a full record was filed with the court. 

This showed that “the State Attorney paid all of Mr Zuma’s legal costs; that is, Hulley Inc’s fees and disbursements (including counsel’s fees), as well as the costs of his opponents when so ordered”.

This was done in Zuma’s failed attempt to set aside search and seizure warrants issued in October 2005, and which cost R9,6-million, his  unsuccessful seeking to set aside a request for co-operation from Mauritian authorities, made in April 2007 and which totalled almost R4.8-million in legal fees, unsuccessfully seeking to set aside a 2007 indictment at the cost of R2.6-million, and unsuccessfully opposing the Democratic Alliance’s review of a 2009 decision to discontinue the prosecution against Zuma, and which tallied approximately R7,8-million.

Neither of Zuma’s requests, one made in 2006 and the other in 2008, the court said, had made reference to the costs incurred prior to 22 August 2006 (the date of Hulley’s request to the State Attorney) or any additional litigation other than the criminal trial itself.

“And yet, in all of the aforementioned matters, costs to the tune of some R25-million were borne by the State. This, despite neither a request nor authorisation for the payment of those funds.”

It also emerged that “the funding included costs that were incurred in 2005, not on any litigation that directly involved Mr Zuma, but in respect of a watching brief in the Shaik trial”, said the judges. 

The funding tap “had thus been opened much earlier than the DA [which first brought proceedings] or EFF [which subsequently brought proceedings] could reasonably have suspected. Moreover, the funding is ongoing”.

“The effect on state resources can also not be overlooked. Substantial unplanned expenditure has occurred and will continue to occur.”

The thrust of the argument advanced on behalf of Zuma on this point was that even if unlawful, the payments should continue “because the DA and EFF waited too long to take the matter on review”. 

“Such a contention is breathtakingly audacious and must be rejected. In all the circumstances, it was proper for the high court to have entered into the substantive merits of the review application.”

While Zuma had argued that the State Attorney was authorised to appoint and pay private attorneys to represent him, the law did not authorise the state to cover private legal costs. 

“They provide only for the provision of services by the State Attorney.”

Hulley Inc performed and procured services not on behalf of the government of the republic, but “on behalf of Mr Zuma in his personal capacity”. 

“In all of the litigation, Mr Zuma was cited in his personal capacity; the orders sought would have been enforced against him personally, not against any government office or department. The fact that Mr Zuma held high office in the executive does not mean that, in representing him, the State Attorney was acting ‘on behalf of the Government’”.

Zuma had not been advancing “any governmental interest or purpose” and the prosecution had been instituted against him in his personal capacity. 

“The thrust of the allegations against him is that he used his official position and influence in Government to advance his private interest. His interest in the Shaik trial was that of a potential accused in his personal capacity. So, too, was Mr Zuma’s interest in the DA’s application to review the discontinuation decision.”

The former president had argued that the state had an interest in “protecting a government official”. 

“But this is not necessarily so. The Government and the public have an interest in protecting the rule of law and ensuring accountability and good governance; all of which is achieved by prosecuting offences of corruption and other abuses of public office and by ensuring that criminal trials proceed without delay.,’ reads the SCA judgment. DM