Finally, Zuma must pay up

30 November 2020 | Andri de Jager

After four years of litigation between former President Jacob Zuma and the Public Protector (together with seven other Respondents), the Supreme Court of Appeal has finally ruled on 30 October 2020 that Mr Zuma must personally pay all the legal costs resulting from this legal battle.

The Application on which the Supreme Court of Appeal Judges recently ruled, originated from allegations of corruption contained in the ‘State of Capture Report’ by the former Public Protector, Professor Thuli Madonsela. The report contained troubling allegations of improper relationships between Mr. Zuma, Cabinet Ministers and senior government officials on the one hand and the Gupta family on the other.

As a result of the allegations contained in the said Report, Mr. Zuma, in his capacity as President, launched an urgent application together with two other government officials during October 2016 in the High Court to stop the publication of the Report pending the outcome of a Review Application. This urgent application was however withdrawn a few days later which resulted in the Report being released on the 2^nd of November 2016.

Further legal costs were wasted when Mr. Zuma failed to set up the commission that had to proceed with an enquiry into the allegations of State Capture as contended in the Report and rather decided to proceed with the intended Review Application in the High Court. Mr. Zuma sought an order reviewing and setting aside the decision of the Public Protector that the President should firstly, set up the commission of enquiry and secondly, also give an indication of his implementation of the commission’s recommendations within 14 days after the commission was established.

Mr Zuma based his Review Application on the ground that the actions required by the Public Protector was unconstitutional since the provisions of sections 84(2)(f) of the Constitution stated that only the President had the power to direct a party to establish a commission to investigate these kind of actions. Mr Zuma, in his own words, stated that he could not be instructed by anyone as to when and how he should appoint a commission of enquiry. Further grounds for the review application were also noted by Mr. Zuma in supplementary affidavits filed at a later stage.

In the meantime, public announcements were made by the Office of the Presidency that a commission of enquiry into state capture would be established in accordance with the Public Protector’s recommendations. These announcements were however inconsistent with the purpose of the Review application that was before the High Court at this stage.

The High Court dismissed the Review Application on 13 December 2017 and ruled that the Public Protector indeed has the power, in appropriate circumstances, to direct the President to appoint a commission of enquiry and that there is nothing in the Ethics Act that prohibits the Public Protector from instructing another organ of state to conduct a further investigation. Mr Zuma was consequently ordered to pay the costs of the Review Application in his personal capacity on a punitive scale.

It was this cost order by the High Court that caused Mr. Zuma to institute an Application for Leave to Appeal, first to the High Court, and thereafter to the Supreme Court of Appeal. As the Leave to Appeal Application was brought by Mr. Zuma in his capacity as President, his successor, President Cyril Ramaphosa, was in a position to withdraw the Leave to Appeal Application upon the resignation of Mr. Zuma as President. The Application for Leave to Appeal rder was however not withdrawn by the President, as the High Court ruled that these costs should be paid by Mr. Zuma personally.

The Supreme Court of Appeal ultimately dismissed the Leave to Appeal Application on the following grounds:

• That the Supreme Court of Appeal could not interfere with the exercise of the lower court’s decision, unless there was a material misdirection by the lower court;

• That the High Court found that Mr. Zuma delayed the resolution of the state capture allegations in launching the Review Application. The High Court Judges further contended that the sudden abandonment of the relief and that the matter be remitted to the Public Protector for further investigation, as previously sought by Mr Zuma, emphasized the fact that the application had been brought for an improper or unconstitutional purpose to ensure that the serious issues raised in the Report and which implicated Mr Zuma, his friends and family, were to be not investigated at all, unless he got to choose the person to do the investigating and dictate the terms of reference of the investigation. The Court went on to say that a higher duty should be imposed on public litigants to respect the law, to fulfil procedural requirements and to tread respectfully when dealing with rights, therefor the public officials, and not the taxpayer, should pay the costs of litigation brought against them;

• The Judges of the Supreme Court of Appeal found that the High Court, beyond question, applied the correct legal principles in granting a punitive and personal cost order against Mr. Zuma. The High Court therefor rightly found that the President could not litigate for the purpose of protecting his own personal interests on the grounds as mentioned above.

The Supreme Court of Appeal consequently dismissed the Leave to Appeal Application of Mr. Zuma, as he did not establish a reasonable prospect of success on Appeal.

In the Case of Gauteng Gambling board v MEC for Economic Development NAVSA JA said the following:

“It is time for courts to seriously consider holding officials who behave in the high-handed manner described above, personally liable for costs incurred. This might have a sobering effect on truant office bearers.”