Former president Jacob Zuma stands on the brink of financial devastation as he faces his last court battle to stop his corruption prosecution. There is an estimated R26m in legal costs hanging over his head and a court ruling blocking any further state funding of his defence.
Where Zuma’s attempts to appeal rulings that went against him – as president or as the accused – were once criticised as cynical efforts to delay the inevitable, his challenges to two devastating costs rulings are now matters of survival.
Zuma cannot afford not to appeal. His strategy of legal Stalingrad has become his prison. And without the intervention of a ridiculously wealthy and generous benefactor, he cannot venture outside it.
Just days before the high court cut off state funding for his defence, Zuma had petitioned the Supreme Court of Appeal for the right to challenge the other damaging costs-related order made against him – one linked to his “reckless” litigation in the state capture saga.
Zuma wants the right to fight a ruling that he personally pay the R6m-R10m legal bill attached to his fruitless legal challenges to former public protector Thuli Madonsela’s “State of Capture” report.
In court papers, Zuma argues that the high court’s finding that he acted “recklessly and unreasonably” by persisting with his legal challenge to the report, “because it amounted to a reckless disregard of the serious allegations of corruption involving the president”, was “meritless”.
The court found Madonsela had acted lawfully when she ordered chief justice Mogoeng Mogoeng to appoint a judge to head the state capture inquiry because Zuma was implicated in state capture and therefore conflicted. It effectively found that Zuma’s attempt to challenge this remedial action was designed to frustrate the investigation.
Zuma vehemently denies this, saying he was trying to establish whether the inquiry ordered by Madonsela could withstand constitutional scrutiny.
“Furthermore, it could never be reckless and unreasonable for the president to seek to establish whether the chief justice could participate in the process of establishing a commission of inquiry in terms of section 91 of the constitution.”
He also seems to take a swipe at President Cyril Ramaphosa for not appealing the personal costs order granted against him.
“The principle that I should be held personally liable for costs orders for executive decisions that I took while I was president of the Republic of SA should have concerned President Ramaphosa because it has very concerning constitutional implications for the exercise of constitutional duties by the head of the national executive,” he argues.
The appeal court needs to decide if it will even hear Zuma’s arguments, after the high court refused his application for leave to appeal. If it and the Constitutional Court find he has no reasonable chance of success on appeal, Zuma faces the very real prospect that the opposition parties that won a personal costs order against him will attach his assets to recover these costs.
At the same time, Zuma faces a crucial court battle in his fight to avoid prosecution for corruption.
Last month, he filed an application for a permanent stay of prosecution, drafted by four experienced – and very expensive – senior counsel. That application, in which Zuma argues that the 16-year-old corruption case against him has been defined by prosecutorial impropriety, undue delay and political interference, is his last chance to stop his trial on charges of racketeering, fraud, corruption and tax evasion.
If he fails to persuade the KwaZulu-Natal High Court that he has a compelling case for the charges to be dropped, he is looking at spending at least a year in the dock. If convicted of racketeering, he faces 25 years behind bars.
Now, more than ever, Zuma needs a well-resourced and forensically adept defence team to fight his case. But if last week’s high court ruling stands, he won’t get any of that funding from the state.
Three judges ruled that Zuma had never been legally entitled to the millions of rands that taxpayers spent on his multiple challenges to his corruption prosecution, and ordered that the state attorney use all means necessary to recover the money already spent on this futile litigation.
“It is in the public interest that charges relating to the abuse of public office – corruption and fraud – are prosecuted to ensure public accountability, the promotion of good governance, the protection of the rule of law and the protection and advancement of the rights enshrined in the bill of rights,” the judges ruled in a unanimous decision.
“If the state is burdened with the high legal costs of those public office-bearers who are charged with such crimes, the taxpayer bears that burden and poor communities continue to be denied access to essential services, as the state’s resources are being diverted.”
In the minutes before that ruling was handed down, Zuma’s attorney Daniel Mantsha told journalists that he wasn’t optimistic about his client’s prospects of success. “But we will appeal if we lose,” he said.
Mantsha had argued in court documents that Zuma was entitled to have his defence funded – with the proviso that these legal expenses would be reimbursed if Zuma was convicted – because the crimes he stood accused of were allegedly committed in the scope of his official duties.
Zuma’s corruption charges have their genesis in events dating back to 1997, when French arms company Thomson-CSF, now known as Thales, scored a R2.6bn contract to provide four navy frigates to SA as part of the wider R60bn arms deal.
The state alleges that as claims of corruption linked to the arms deal grew, Thales agreed in 2002 to pay R500,000 to Zuma, then SA’s deputy president, for his “political protection” in the event of an investigation – a deal allegedly brokered by his former financial adviser, Schabir Shaik.
It’s further the state’s case that Shaik and his Nkobi Holdings made 783 payments to Zuma, totalling more than R4m, in the 10 years between October 1995 and July 2005. In return, the state claims, Zuma abused his position as MEC and deputy president to do unlawful favours for Shaik, who was jailed for his role in the matter, and Nkobi Holdings.
Mantsha has vehemently denied claims by the DA that the case against the former president “has nothing to do with his role as a public official”.
He said: “One just has to have a casual read of the charges against him [Zuma] to notice that the [DA’s] contention is false and self-serving.”
He added that it is “self-evident” that the case against Zuma “centred around his official powers and duties”, given that the alleged bribes were supposed to induce him to use his public office to further outside interests. “Logically, outside government, Mr Zuma would have no such power.”
But the high court in Pretoria, following from the reasoning contained in two recent judgments in the Western Cape, was unconvinced. “The specific conduct on which the prosecution relies – that Mr Zuma allegedly received 783 payments or gratifications outside his official remuneration – is not conduct that could in any way be connected to his official functions.”
The court added: “Allegations or charges of corruption and fraud against a public office-bearer, in the words of former president Thabo Mbeki, raise ‘questions of conduct that would be inconsistent with expectations that attend to those who hold public office’. And, as was said by President Ramaphosa, it is a ‘fundamental principle that public money should not be used to cover the legal expenses of individuals on strictly personal matters’.”
Zuma’s lawyers will no doubt dispute this logic. But in a country in the midst of an economic, social and political reckoning that is largely the result of Zuma’s leadership, it is likely to find support among frustrated taxpayers.
There is a risk, though, that crippling Zuma financially may give him ammunition to argue, as he has so many times, that he is being unfairly targeted and victimised by opposition parties, the courts and a president unwilling to stand up for him. Zuma is unlikely to win his legal struggles over the state funding his fees. All he can do is use appeal processes to buy some breathing room – and see whether a once dense forest of political and financial benefactors still believes he has the power to justify such largesse. -- This piece first appeared in Financial Mail...