Court threat against Zuma's state legal fees deal

President Cyril Ramaphosa has until Thursday to revoke Jacob Zuma's "deal" on state-funded legal fees or face a court challenge.

The DA and EFF have demanded to see a copy of the deal concluded 12 years ago between Zuma and former president Thabo Mbeki, which has already cost taxpayers R32.4-million according to parliamentary answers.

Both argue that Zuma does not qualify for state legal funding because the crimes he is accused of were not committed in his official capacity but in his personal interest.

The DA told Ramaphosa it would take him to court if the deal were not revoked. Its application is expected to be flagged as urgent because Zuma's first court appearance is expected within two weeks.

"Former president Zuma was, at all relevant times, cited in his capacity as an ordinary citizen and not in his official capacity," the party's attorneys told Ramaphosa on Wednesday after his disclosure that the state had spent R15.3-million fighting Zuma's "spy tapes" litigation alone.

"Kindly explain on what basis he would have been entitled to expect his legal fees to be paid by the state and/or Presidency and/or Treasury."

The lawyers reminded Ramaphosa that Zuma and the National Prosecuting Authority had conceded in the Supreme Court of Appeal that there was "no merit" in their attempts to fight the DA's challenge to the decision not to prosecute Zuma.

A particular difficulty Ramaphosa will face in defending continued legal funding is that all of Zuma's court actions have ended in failure.

Legal fees spent by Zuma in fighting the corruption charges against him - and using state resources to protect his own interests in the state capture, Nkandla, and Pravin Gordhan removal cases, as well as his court bid to control the appointment of the NPA head - total just over R41.4-million.

In response to Promotion of Access to Information Act requests by Advocate Ben Winks, the state attorney this week provided more answers about the costs of Zuma's taxpayer-funded and largely unwinnable litigation strategy:

• The cost of Zuma's legal team in his futile attempts to block the release of then public protector Thuli Madonsela's "State of Capture" report - and then to review that report - was R2.53-million;
• The Presidency spent R1.2-million to fight a court ruling ordering Zuma to hand over the so-called "intelligence report" he used as a basis to fire then finance minister Gordhan; and
• Zuma's fight to retain control over who he appointed as head of the NPA cost R1.9-million.

These sums do not include the massive costs orders awarded against the Presidency on the basis that the cases were almost all found to be "reckless", ill-advised or unwinnable.

Over Zuma's eight years in office, Presidency legal fees totalled R64-million, with the vast majority spent on cases in which Zuma either had a direct interest or was defending his own illegal decisions.

Those costs were borne by taxpayers, with Zuma only recently being ordered to personally pay the estimated R10-million costs in the state capture cases.

Zuma's legal team have indicated that even before his trial begins they may bring three court challenges to the corruption and racketeering case against him:

• A review of National Director of Public Prosecutions Shaun Abrahams's decision to proceed with the case against Zuma;
• A challenge to the racketeering charge; and
• An application for a permanent stay of prosecution.

DA lawyers have also asked Ramaphosa for proof that Zuma agreed to repay the money spent on his defence if he was found to have acted "in his personal capacity and own interests in the commission of the offences with which he was charged".

Ramaphosa's spokeswoman, Khusela Diko, has claimed the Zuma fees deal was concluded in line with provisions of the State Attorney Act. But DA lawyers are not convinced the act provides a clear basis for the "fees deal" to continue.

"The attorney of former president Zuma was not the state attorney but Michael Hulley, of Hulley and Associates, a private law firm. On what basis is it alleged that this practice is subject to the provisions of the State Attorney Act?" the DA asked.

Legal experts said the act could not be used to justify continued funding of Zuma's fees and that allowing the deal to continue would set a negative precedent, particularly since other current and former ministers and officials may face state capture charges.

The State Attorney Act provides state financial support for cases in which the government has a direct interest, or matters in which there is clear public interest.

"There is no public interest in fighting losing legal battles," Winks told the Sunday Times, "and it's unclear what interest the government has in these cases."

Constitutional law expert Phephelaphi Dube said corruption, money-laundering and racketeering were "not part of ordinary functions of the office of the president, so the State Attorney Act could not apply". Any attempt to use the act to justify paying Zuma's legal costs would be "clutching at straws".