Zuma Claims He Cannot Afford Corruption Trial Defence, Appeals Repayment Order
Former president Jacob Zuma is mounting a legal challenge against a High Court ruling that compels him to repay R28.9 million in taxpayer funds spent on his defence in the ongoing arms deal-linked corruption case. Zuma argues that he is unable to afford both his ongoing legal defence and the repayment, and that forcing him to do so would jeopardise his right to a fair trial.
Zuma is now seeking leave to appeal Judge Anthony Millar's ruling in the Gauteng High Court in Pretoria, a ruling that dismissed his application to appeal the decision on 3 December. The Presidency and the State Attorney have indicated they will oppose this latest appeal.
In his initial ruling, Judge Millar stated, "To keep the doors of the court open indefinitely to a litigant who refuses to accept the judgment on a particular matter serves no legitimate purpose. All it does is serve to be a drain on scarce judicial resources and to strengthen the view that accountability can be deferred for so long as one has the means to do so."
Millar further emphasised the importance of equality before the law, adding, "It is destructive of the notion that all are equal before the law and confirmatory of the view that ‘there is far too much law for those who can afford it and far too little for those who cannot’."
Zuma maintains that he should only be required to repay the funds if he is ultimately convicted of corruption and found to have been acting in his own interests. He argues that the state's right to a refund has not yet "matured" and may never do so if he is acquitted.
"None of these things has occurred to date. The state’s right to a refund has not matured, and it may never mature in the event of my acquittal. It is premature for the state to be claiming a refund under the circumstances," Zuma argues in his application to the Supreme Court of Appeal (SCA).
He also raises the possibility that the trial judge in his criminal case could find that the state abused the process by filing unsustainable charges against him, or even that he was a victim of malicious prosecution. "That finding would mean not only that the state is not entitled to a cent in refund but may also mean that I would be entitled to substantial damages," Zuma claims.
While acknowledging that he was not legally entitled to state funding for his corruption trial defence, Zuma insists that he is not to blame for the unlawful expenditure and should not be held responsible for repaying it. "Essentially, the unlawful conduct of the state cost the state the amounts now sought to be recovered from me," he states.
The legal battle over Zuma's state-funded legal costs dates back half a decade, when the SCA, following applications by the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF), upheld a High Court ruling that there was no legal basis for Zuma to receive state funding for his corruption trial. The SCA ordered the State Attorney to take all necessary steps, including civil litigation, to recover the funds.
At the time, SCA Judge Nathan Ponnan stated that ordering the State Attorney to recover the funds was "essential for the vindication of the rule of law, the correction of Mr Zuma’s use of public resources to enable him to defend himself against criminal charges brought against him and to litigate in the various related civil proceedings on a most luxurious scale, and to enforce the constitutional principle of public accountability – especially by those entrusted with the highest office in the Republic of South Africa."
Despite this, Zuma insists that "no finding" of unlawful conduct was made against him in the SCA ruling, and that he was not specifically named "as the person against whom the state must recover the amounts." He argues that the principle of public accountability should be directed at the state, not at him. "The enforcement of the public accountability principle could not be directed at Mr Zuma but the state, which is bound by that principle for the lawfulness of its decision," he maintains.
Zuma further argues that instead of ordering him to repay the R28.9 million, Judge Millar should have directed President Cyril Ramaphosa and the State Attorney to identify and take action against the officials who authorised the unlawful payments in the first place.
Specifically, he suggests that Millar should have ordered Ramaphosa and the State Attorney to "identify the officials that gave the legal advice to enter into an agreement with Jacob Zuma for the payment of his legal cost; take steps to recover the unauthorised and irregular payments from those who received such payments; take steps to recover the unauthorised and irregular payments from officials who authorised such payment."
He also believes Millar should have mandated Ramaphosa and the State Attorney to "take disciplinary steps against such officials as required in the PFMA (Public Finance Management Act)".
Zuma accuses Millar's ruling of holding him liable "for the state's unconstitutional conduct" while "exonerating the state from the consequences of that conduct – contrary to the requirements of the Constitution that the state must be held accountable for the consequences of its conduct against innocent citizens."
In his view, "the state’s conduct violated its constitutional obligations in relation to expenditure of state funds – thereby committing public financial violations. The order of the court a quo exonerates the state from the consequences of its unconstitutional conduct and does not hold the state to account for the public finance management violations of irregular expenditure prescribed in the [PFMA]."
Zuma concludes by asserting that "the orders of the court a quo amount to judicial tolerance for the state’s lawlessness and unconstitutional conduct. Considering the extensive constitutional power of the state a court ought to lean towards the protection of citizens and not [the] protection of the state." The Supreme Court of Appeal will now have to decide whether to grant Zuma leave to appeal this contentious ruling.
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