Analysis: Why it’s ‘only logical’ for state to foot Zuma’s legal bill
It started early on - the state paid a lawyer R1m in 2004 to ‘observe’ the Schabir Shaik trial
It is only logical that the state pay former president Jacob Zuma’s legal fees because he was in a powerful government position when he allegedly committed corruption.
This was the argument Zuma’s lawyer brought to the table in an affidavit filed this week.
But Cyril Ramaphosa’s director general, Reginald Lubisi, was quick to point out in an explanatory affidavit that such funding can be forfeited if Zuma did not act in the course and scope of his employment as a government official.
The presidency also hinted it may seek a legal fees refund from Zuma, depending on the outcome of a court challenge to the current state funding of his defence in his corruption trial.
Zuma is embroiled in court battles with the Economic Freedom Fighters and the Democratic Alliance, who want to stop the state from continuing to foot the former president’s legal bill.
The outcome of these cases will undoubtedly influence if and how the government funds the legal costs of state officials accused of corruption.
With various state capture prosecutions allegedly brewing against several senior state officials, its outcome could be potentially precedent-setting.
Zuma’s lawyer, Daniel Mantsha, has denied claims by the DA that the case against the former president “has nothing to do with his role as a public official” and he is therefore not entitled to state funding.
“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 said in the affidavit.
Zuma is facing charges in relation to his relationship with his former financial advisor Schabir Shaik, who was convicted of keeping Zuma – then deputy president of the ANC and later deputy president of SA – on a corrupt retainer. In exchange for multiple payments, Zuma allegedly used his power and position to further Shaik’s interests.
He also stands accused of accepting a R500,000-a-year bribe, facilitated by Shaik, from French arms company Thint, in exchange for his protecting the company from an investigation into the multibillion-rand arms deal.
Mantsha says it is “self-evident” that the case against Zuma “centred around his official powers and duties”.
“The allegations are that the bribes were intended to induce him to use his public office to further their interests … Logically, outside government, Mr Zuma would have no such power. The allegations are self-evidently that Mr Zuma abused or inappropriately used his official powers or duties for the benefit of Shaik, his companies which allegedly attempted to bribe him.”
But an explanatory affidavit filed by the Presidency director-general states that the funding given to Zuma was provided according to the provisions of the State Attorneys Act.“The rationale for state funding of an official’s legal costs is to recognise that there are circumstances where an official is exposed to the risk of litigation by virtue of his or her office no matter the rank. The official should not be liable for claims arising from acts committed in the course and scope of his or her official duties”.
But, should that official be accused of acting outside the course and scope of his or her employment when he or she allegedly committed crime, that funding could be forfeited.
The Western Cape High Court recently denied state funding to several senior police officials based on the fact that they stood accused of corruption that fell outside of the course and scope of their official duties – a decision that sets a clear precedent for the possible denial of legal funding to Zuma.
According to Lubisi, the payment of Zuma’s fees began as early as 2004, when the presidency paid a lawyer over R1m to monitor the criminal trial of Zuma’s former financial advisor Schabir Shaik, who had been charged with corrupting Zuma.
When Zuma was charged with corruption in 2005, former Justice minister Brigette Mabandla advised then president Thabo Mbeki that he qualified for state funding for his defence.
The Presidency went on to fund multiple unsuccessful cases brought by Zuma, in which he sought to challenge the search and seizure raids conducted by the Scorpions on his and his lawyer’s properties, as well as the Scorpions’ efforts to secure evidence against him in Mauritius.
He also, among other things, took the NPA to court for failing to seek representations from him about why the case against him should be dropped.
All of these cases ended in failure.
But, while Zuma has agreed to refund the state if he is ever convicted of corruption, it appears unclear if he was ever asked to pay such a refund for multiple failed civil applications linked to the case.
“It is correct that the presidency has not yet requested a refund of any of the funding provided to Mr Zuma,” Lubisi said. “We await the outcome of this litigation before we do so”.
The matter involving Zuma’s legal fees will be heard on November 6 and 7 – just over a week before he is expected for file a permanent stay of prosecution application in the corruption matter.