Is it constitutional for the State to foot Jacob Zuma's legal bills?

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In March of 2018, President Cyril Ramaphosa announced that the taxpayers would foot former president, Jacob Zuma’s legal defence bills, which was then R1.7 million and no doubt accruing even now. Amongst other alleged and proven acts of corruption and racketeering, Zuma spent at least R300 million ín taxpayers money to upgrade his home with a new swimming pool, amphitheatre , and a cattle enclosure. To give you an idea of how much money that is, according to AfricaCheck.org, South Africa could have trained 5 125 to 7 935 engineers, doctors, or lawyers.

Eyewitness News estimates that Zuma’s corrupt administration cost South Africa at least R680 billion. The New York Times supports this finding. It stated that under the former president’s rule, South Africa’s economy spiralled into crisis. Because of Zuma’s Administration, unemployment is anywhere between 28 to 36 percent, with youth unemployment at 55.9 percent. Furthermore, 60% of the people “live on less than R40 000 per year”. Unfortunately “[p]overty remains largely a black experience.”

But even after Zuma left office, he once again managed to collect from the taxpayers. This time was because state prosecutors filed 18 criminal charges against him.





But why should the taxpayer have to pay for Zuma’s mounting attorney’s fees? Doesn’t something seem wrong with paying for the attorney’s fees of someone who’s enriched himself, his wives, his family and his friends by ruining the South African economy?





Although Ramphosa justified himself in spending other people’s money on Zuma’s legal fees, Ramphosa may have no legal justification for doing this, because the Constitutional Court has already held that Zuma violated his duty of loyalty to the taxpayer.





The President says he can do this under Section 3(3) of the State Attorney Act 56, but citing that law for justification is a bit left field. 3(3) states that the State Attorney can defend or prosecute someone that’s “not a party” but is “interested or concerned” with the government.





A case like this may come up if a contractor (not a government party) is building a road under the government’s direction (which makes one connected to the government) and someone is injured. The injured party sues the contractor. The government may choose to defend the party in a lawsuit. Hence, this law doesn’t apply here.





My research doesn’t show any express SA law of indemnification (a third party’s obligation to pay for damages and legal fees) regarding government officials, administrators, and employees. If this is true, the remaining question is: Can the President authorize the payment of these fees?





As most good lawyers will tell you – the answer is complicated, especially indemnification law. But in this case, it appears that the President’s Office cannot do so. Some background on the law is needed to explain why.





Generally, indemnification requires the government to pay for an employee’s legal fees, if the proceeding was brought because of a government worker’s action done in the scope of employment.





Absent statute, generally, common law enables the executive to indemnify almost anyone for almost anything. But an exception arises if the accused has breached her duty of good faith or the duty of loyalty to the taxpayer. In fact, America’s corporation code was revised regarding indemnification. Legal experts decided that to pay for legal fees for anything would encourage director and officers to steal from shareholders; so, minimal legal limits are required.





Hence, what all this means in the government context, is this: If Zuma, as President of South Africa, made decisions solely to profit him, his family, or his friends, the government is barred from paying the former president’s legal fees, even if it wanted to.





And this is why Ramaphosa’s decision is actually illegal. The Public Protector already declared several of Zuma’s decisions to be in breach of good faith and hence issued a binding order requiring him to pay back the state treasury with regards to the money spent on renovating his private home. Furthermore, the Constitutional Court upheld the Protector’s decision, adding that the President failed to “uphold, defend and respect” the Constitution. The two rulings are clear and binding findings of a breach of good faith. (It may be a different story if no such authoritative findings were made.)





Hence, regarding any defence fees that are related to the charges that arise from the Court and Protector’s finding, Ramaphosa is prohibited by the Constitution to pay for Zuma’s legal fees. In my opinion, paying Zuma's legal fees once again breaches the Constitution because it perpetuates the original violation of Zuma's failure to "uphold, defend, and respect" the people's rights.





To be sure as much as the public dislikes Zuma, unjustly retaliating against former public officials must also be protected against. Political leaders may make decisions that they genuinely believed were in the public’s interest and later, be wrong and disliked for it. In those cases, to ensure the continuity of government, retaliation must be curbed by indemnifying.





But this is not the case here. Here, the solution is clear. The current government must revoke Zuma’s legal fees and require him to return what’s already been given to him, legal fees and other illegally obtained money.





Corruption destroys freedom and economy. Hence, SA must uproot it. In doing so, we can live out Nelson Mandela vision, who said: “Money won't create success, the freedom [for us all] to make it will.”





* Cook is an American lawyer and the author of the blog The Legal Lens



