It took less than five minutes for the Constitutional Court to hear arguments in a case brought by former president Jacob Zuma to review the Public Protector’s “State of Capture” report. 

It took even less time for the judges to dismiss the case and leave Zuma with the legal bill. 

Indications are that Zuma decided he was not going to participate in his own case as early as April when his lawyers sent a curt note to the court saying they had withdrawn. As in the Pietermaritzburg criminal case, no reason was given for the withdrawal.  

“Kindly take notice that Kgoroeadira Mudau Inc hereby withdraws as the Applicant’s attorneys of Record,” the letter said, without giving further details on the reason for the withdrawal.

On Thursday nobody arrived at the ConCourt via Zoom to represent Zuma, which caused the other lawyers in the matter to call for the case to be struck from the roll and for Zuma to pay their legal fees. 

“We are in a strange situation where the applicant (Zuma) for leave to appeal has not complied with any of the court’s directives. No record of appeal has been filed. And in consequence thereof, no heads have been submitted either by the applicant himself and certainly not by the respondents,” said advocate Kameel Premhid representing the Economic Freedom Fighters.

“The court will be aware that we collectively are of the attitude that this application as it stands before the court today is fatally defective and that it should be struck from the roll with costs,” he added.

Premhid requested that the court order Zuma to pay for the cost of two counsel, a sentiment echoed by advocate Michael Bishop representing the Democratic Alliance.

“We align ourselves with the submission made by Mr Premhid. There’s no record; no written argument has been filed. The matter should be struck from the roll with costs,” Bishop said.

Advocate Ofentse Motlhasedi, representing the Council for the Advancement of the South African Constitution, said “the manner in which the application was brought before the court is defective”, and called for Zuma to pay the legal costs.

Acting Deputy Chief Justice Sisi Khampepe adjourned the case for a few minutes and returned to rule that the case be struck off the roll with costs. The ruling will see Zuma not only having to pay the legal fees for all parties involved in the case, but also the legal fees in the High Court and Supreme Court of Appeal (SCA) cases that he had initially gone to before the ConCourt.

Zuma had initially filed court papers at the ConCourt in November 2020, calling on it to overturn an SCA ruling and cost order against him. He was challenging the validity of the State of Capture report, which effectively created the Zondo Commission of Inquiry into State Capture.

In his founding affidavit, Zuma appealed against the SCA judgment from 30 October 2020, saying Thuli Madonsela had breached the doctrine of separation of power when she instructed the Chief Justice to appoint the judge who would head up the inquiry into State Capture.

“The award of a punitive personal cost order against me was incorrect, given the fact that I was acting as the President who was concerned about the constitutionality of the remedial action. The remedial action effectively took away the constitutional powers vested in the president and gave them to the judiciary. This was a novel point. I submit that I was not reckless or negligent in approaching the courts to settle this point,” Zuma had said in his affidavit at the ConCourt.

In the judgments leading up to this hearing, the courts were scathing in their assessment of Zuma’s conduct.

The High Court found Zuma had a “personal conflict” that presented an “insurmountable obstacle” in that he was implicated in allegations of State Capture.

“The review application was a clear non-starter and the President was seriously reckless in pursuing it as he has done. His conduct falls short of the high standards expressed in Section 195 of the Constitution,” a full bench of the High Court said.

“Taking all the circumstances sketched and the considerations made, we are of the view that the President was ill advised and reckless in launching the challenge against the remedial action of the Public Protector… Our view is that this is a proper case where a personal cost order is justified and should be granted.”

The SCA upheld the personal cost order, saying Zuma was “acting in a personal and not a representative capacity”.

“There is force in this submission, given that in both the review application and these proceedings, Mr Zuma sought to justify the impermissible, rather than accept the error of his challenge. And it cannot conceivably be in the interests of justice to permit Mr Zuma to pursue an appeal against the costs order, in circumstances where the launch of the review application was reckless and motivated by personal interests. His delay in establishing the commission of inquiry into serious allegations of State Capture was prejudicial both to the public and national interest, and subversive of our democratic ethos. For all these reasons, a punitive costs order in this application is justified,” the SCA said.

The estimated legal bill for the initial court case is between R6-million and R10-million and Thursday’s failed bid will see it increase further. DM

Dianne Hawker is a legal journalist and News Editor at Newzroom Afrika.