Zuma must pay back taxpayers’ money: Supreme Court of Appeal
The State Attorney Act does not exempt former president Jacob Zuma from paying legal fees running into millions of rand as there had been no suggestion he was advancing any governmental interest or purpose, the Supreme Court of Appeal (SCA) has ruled.
The SCA on Tuesday dismissed Zuma’s appeal against a high court judgment that found the state was not liable to pay for his legal costs.
Zuma was appealing a personal costs order against him by the North Gauteng High Court in December 2018. It related to his failed bid to review then public protector Thuli Madonsela’s “State of Capture” report. The report led to the establishment of the commission of inquiry into state capture chaired by deputy chief justice Raymond Zondo.
TimesLIVE reported in 2018 that Zuma would no longer receive state funding for his corruption trial defence. The court at the time ordered the state attorney to “take all necessary steps, including the institution of civil proceedings” to recover taxpayers’ money spent on the costs.
Deputy judge president Aubrey Ledwaba ruled that Zuma, “like all other accused persons in SA, is thus entitled to be represented by a legal practitioner using his own resources, or those offered by the Legal Aid Board”.
The DA and EFF, who opposed Zuma’s appeal at the SCA, contended that section 3 of the State Attorney Act did not authorise the state attorney to fund private legal costs at all, including for the president, and that it was just and equitable to require Zuma to pay back almost R16m in legal fees.
Zuma shot back, arguing that the state attorney was authorised by either section 3(1), or section 3(3) of the act to appoint and pay private attorneys to represent him.
The SCA, however, found that neither section authorises the state to cover private legal costs. They provide only for the provision of services by the state attorney.
“That section authorises the state attorney to act on behalf of the government and to perform the work ordinarily performed by attorneys and other legal representatives. The purpose of the section is to give the state attorney a legal mandate to act as the government’s legal representative,” the SCA contended.
The appeal court said Zuma’s former lawyer Michael Hulley was hired to perform and procure services not “on behalf of the government of the republic” but on Zuma’s behalf 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.Supreme Court of Appeal judgment
“In all 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 judgment reads.
“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’.”
The court held there had been no suggestion that Zuma was advancing any governmental interest or purpose, and that prosecution was 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.
“The decisions to appoint and pay Mr Hulley could thus not have been made in terms of section 3(1) of the act, which does not authorise the state attorney to perform work on behalf of anybody other than the government itself. The decisions were thus ultra vires section 3(1) and consequently unlawful, unconstitutional and invalid.”
Zuma and the state attorney’s reliance on an alleged conflict of interest to justify the appointment of private legal counsel to represent him did not assist him in his case, the court said.
“The concern over a potential conflict of interest only arose because of an acceptance in the first place that the state attorney was entitled to act for Mr Zuma under sections 3(1) or 3(3) of the act. Since that assumption is incorrect, the question of a conflict of interest did not properly arise.
“In any event, it is difficult to see how a conflict of interest could possibly have arisen.”
The court also found, as the high court had held, that a repayment order would 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”.
“Simply setting aside the decision to pay, without ordering accounting and repayment, would achieve none of those crucial remedial objectives.”