It's not only Zuma. Now no corrupt official will be able to suck SA dry
High court's ruling on state funding means all officials on trial for corruption will have to fund their own defences
The high court has turned off the taps of former president Jacob Zuma’s previously untrammelled state funding of his corruption defence, in a precedent-setting ruling that effectively saves taxpayers from funding the legal costs of allegedly corrupt state officials.
“It is in the public interest that charges relating to the abuse of public office – corruption and fraud – are prosecuted to ensure public accountability, the promotion of good governance, the protection of the rule of law and the protection and advancement of the rights enshrined in the Bill of Rights,” three Pretoria High Court judges ruled in a unanimous decision on Thursday.
“If the state is burdened with the high legal costs of those public office bearers who are charged with such crimes, the taxpayer bears that burden and poor communities continue to be denied access to essential services, as the state’s resources are being diverted in funding the defences of public office bearers charged with such crimes, in this instance financially litigated on a most luxurious scale.”
For years, the State Attorneys Act has been used to justify the legal funding of officials implicated in fraud and corruption, on the basis that the crimes they stood accused of had allegedly been committed in the course and scope of their official duties.
Zuma’s lawyers used this act to justify his entitlement to state legal funding, arguing he allegedly used his powerful position in government to commit the crimes he’s accused of.
Zuma is currently facing charges in relation to his relationship with former financial adviser 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.
Zuma’s attorney Daniel Mantsha argued it was “self-evident” that the case against him “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’s companies which allegedly attempted to bribe him.” But in a decision written by judge Pieter Meyer, and supported by deputy judge president Aubrey Ledwaba and judge Elizabeth Kubushi, the high court has completely dismissed that argument.
The court found the case against Zuma had “nothing to do with any of the official functions he was required to perform as MEC or deputy president of the Republic of South Africa”.
“The specific conduct on which the prosecution relies – that Mr Zuma allegedly received 783 payments or gratifications outside his official remuneration – is not conduct that could in any way be connected to his official functions.”
The court added: “Allegations or charges of corruption and fraud against a public office bearer, in the words of former president Thabo Mbeki, raise ‘questions of conduct that would be inconsistent with expectations that attend to those who hold public office’. And, as was said by President Ramaphosa, it is a ‘fundamental principle that public money should not be used to cover the legal expenses of individuals on strictly personal matters’.”
That ruling has far-reaching consequences, and now sets a far higher bar for officials accused of corruption to justify why they are entitled to state legal funding.
Up until now, officials such as former national police commissioner Jackie Selebi were unquestioningly provided with the costs of their legal defences. While the state attorney maintained that such funding would be recovered if the accused official was convicted, there are few recorded incidents of this actually happening.
Selebi reportedly spent R16m in unsuccessfully defending himself against corruption charges, but this money was not recovered after he was convicted and sentenced. Like Zuma, he had engaged in expensive civil processes aimed at undermining the legitimacy of the prosecution against him. With no financial consequences.
But the high court is clearly intent on ensuring that this doesn’t happen again.
Not only has the court found that the state’s funding of Zuma’s legal fees is unlawful, but it has also ordered that the state attorney ascertain what the former president has already spent on his multiple court challenges to his prosecution – and then “take all necessary steps” to recover that money.
President Ramaphosa has totalled the costs of these cases at just more than R16m, but correspondence from the state attorney reveals the money spent on Zuma litigation may actually be far greater.
Zuma’s lawfare strategy has already cost him dearly. His lawyers have petitioned the Supreme Court of Appeal for the right to challenge an estimated R10m costs order made against him in his state capture review challenge, as a consequence of what the high court described as his reckless litigation.
Unfettered by any sense of consequence, Zuma has been able to pursue numerous fruitless legal challenges to the case against him and, as a consequence, has been able to avoid what ordinary citizens accused of crime must face: actually going on trial.
Now the money that fuelled that Stalingrad strategy has dried up.
And Zuma – and other state officials – can no longer use their status as powerful figures in government to justify their access to unlimited, expensive legal representation. They finally are equal before the law.