Challenge against state capture inquiry should not attract personal costs order, says Jacob Zuma

Former president Jacob Zuma says he should not be held personally liable, on a punitive scale, for the legal costs of a review application he brought against the appointment of a commission of inquiry into state capture.

Zuma is appealing against a personal costs order made by the Pretoria high court in December 2017 when it dismissed his review application of a decision made by the public protector that allowed chief justice Mogoeng Mogoeng to nominate a judge for the inquiry.

Before former public protector Thuli Madonsela left office, she issued a report on November 2 2016 regarding allegations of state capture in which Zuma was directly implicated.

In her remedial action, the public protector ordered the president to, within 30 days, appoint a judge selected by the chief justice to head a commission of inquiry into the allegations of state capture.

Zuma was not happy with this remedial action and launched an application before the high court in which he sought an order reviewing and setting aside the public protector's remedial action.

In December 2017, the high court dismissed Zuma's review application.

It also ordered Zuma to pay the costs of the review application in his personal capacity, on the scale as between attorney and client.

A few weeks later, Zuma lodged an application for leave to appeal against the whole judgment and order of the high court.

However, Zuma resigned as president of the country in February 2018 and his successor Cyril Ramaphosa withdrew the application for leave to appeal against the dismissal of the review application in April that year.

The application to appeal against the costs order was not withdrawn as it affected Zuma personally.

It is this costs order Zuma challenged.

In August last year, the full bench of the Supreme Court of Appeal (SCA) dismissed Zuma's application for leave to appeal with costs.

In his application before the Constitutional Court filed in November last year, Zuma said the reason he launched the review application was to ensure there were no future challenges regarding the commission’s constitutionality.

Zuma said the review application related to the powers of the public protector in ordering remedial action to be taken by the executive and the judiciary.

Zuma said the matter related to whether the public protector can remove a constitutional function of the president and delegate it to the chief justice.

“The aforesaid remedial action was a novelty in the history of the country’s democracy. It is this question, in the main, that I challenged in my capacity then as the president.”

Zuma said he felt it was an important constitutional issue that needed certainty.

He said the awarding of a punitive personal costs order against him was incorrect because he was acting as the president who was concerned about the constitutionality of the remedial action.

“As I have stated above, the remedial action effectively took away the constitutional powers vested in the president and gave them to the judiciary. This was a novel point.”

Zuma said he was not reckless or negligent in approaching the courts to settle this point.

Zuma said the high court erred in finding that in launching the application for reviewing the report, he acted improperly and unreasonably.

“The issue is whether as president, I was entitled to test the constitutionality of the remedial action implicating the powers of the president in section 84 of the constitution.”

That section states the president is responsible for appointing commissions of inquiry.

Zuma said he had stated many times that he was not opposed to establishing a commission of inquiry but expressly challenged the manner of establishing such a commission.

Zuma said one of the challenges regarding the public protector's decision was that the president’s constitutional power to appoint a commission of inquiry was to be exercised in concert with a member of the judiciary.

“This was not permissible in terms of the constitution and the principle of the separation of powers.”

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