Is the state authorised to pay Jacob Zuma’s private lawyers in his corruption case?

Depending on who you believe, former President Jacob Zuma has spent anything between R15 million and R60 million of public funds to prevent having his day in court on charges of corruption, fraud and money laundering. This suggests that Mr Zuma is rather anxious not to have to explain to a judge why he received money from convicted fraudster Shabir Shaik and from an arms company (from whom the money was solicited as a bribe by Shaik) and then did favours for both Shaik and the arms company. But now questions are being asked about whether there is any legal authority for these payments.

One of the fundamental tenets of the Rule of Law (which is a founding value enshrined in section 1 of the South African Constitution) is that an official or member of the executive may only exercise public power if authorised to do so by law. This aspect of the Rule of Law is generally known as being part of the principle of legality.

This principle of legality was explained by the Constitutional Court in Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others as follows:

It seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. At least in this sense, then, the principle of legality is implied within the terms of the interim Constitution.

This means that a decision to fund the private lawyers employed by Jacob Zuma to defend him in his criminal case can only be lawful if it was authorised by law. Earlier this week President Cyril Ramaphosa informed the Democratic Alliance (DA) that:

The decision to provide legal representation to Mr Zuma at state expense was taken in accordance with section 3(1) of the State Attorney Act 56 of 1957.

This seems to contradict what President Ramaphosa told the Economic Freedom Fighters (EFF) in a letter sent at the same time, when he wrote:

I was informed that the State Attorney, at the time of considering the request made by President Zuma for legal representation at State expense, considered section 3(3) of the State Attorney Act, 1957 (as amended) to give her discretion where the State was not party to a matter but interested or concerned in it, or it was in the public interest to provide such representation to a government official.

This means President Ramaphosa has now suggested that the decision was taken in terms of section 3(1) of the State Attorney Act and that it was taken in terms of section 3(3) of the same Act. The wording of these sections of the apartheid era legislation is not a model of clarity. Section 3(3) (which must be the provision that the government is relying on) reads as if somebody drafted this section after smoking a strong zol. It is a messy jumble of words that is not easy to untangle. Read it and weep:

3(3) Unless the Minister of Justice otherwise directs, there may also be performed at the State Attorney’s office or at any of its branches like functions in or in connection with any matter in which the Government or such an administration as aforesaid, though not a party, is interested or concerned in, or in connection with any matter where, in the opinion of the State Attorney or of any person acting under his authority, it is in the public interest that such functions be performed at the said office or at one of its branches.

This section seems to give permission to the State Attorney to serve as attorney in matters not directly involving the government (such as defending an official or member of the executive charged with a criminal offense) if it is in the interest of justice to do so. However, this would only be the case if the Minister of Justice does not direct otherwise (which I read as meaning, “unless the Minister of Justice prohibits this”).

Section 3(3) must be read in context. The Office of the State Attorney was created to deal with legal matters affecting the state. In other words, it is the government’s attorney and members of the executive must use its services when it conducts government legal work. So, when a decision by the President to appoint a National Director of Public Prosecutions is challenged, the state attorney handles the case (but may brief private lawyers to assist – as I explain below).

In Magwentshu v Minister of Safety & Security the Eastern Cape High Court explained that the office of the State Attorney is an established legal practice (like an attorney firm, but one whose client is almost always the state). The court held that the State Attorney’s:

function is, in terms of s 3 (1) thereof, the performance in any court of work on behalf of the Government of the Republic. What appears clearly from the State Liability Act and State Attorney Act is that the State Attorney is by operation of law the attorney to represent the Minister of a government department in court. The Minister has no statutory authority to appoint an attorney in the private practice to act for him/her.

A similar view was expressed by the Eastern Cape Local Division in Mafuna v Lungwengwe and Another where the court held that “the court is entitled to take judicial notice of the fact that the offices of the state attorney act exclusively on behalf of organs of state”.

However, in Mkondo v MEC for Health of the Gauteng Provincial Government the Gauteng High Court held that this did not preclude the State Attorney from briefing private lawyers:

Generally and traditionally, the State Attorney acts as a legal representative of virtually all organs of States. These days, however, the trend is that the State Attorney can brief independent attorneys when it is overcrowded with matters or does not have the requisite skill to handle a particular case.

Whether the State Attorney may ever represent a private client was raised before the Constitutional Court in Shilubana and Others v Nwamitwa. In that case the respondent argued that the State Attorney is not authorised to represent the non-governmental applicants in this matter, because such representation would not be on behalf of the government as required by statute. However, the Court declined to express any opinion on this claim as the appropriate procedure was not followed to bring the claim before the court.

The legal situation at present is therefore somewhat confusing. But it appears to be as follows. Generally, all government legal issues must be handled by the State Attorney. If the office of the State Attorney cannot handle the case itself, it can brief independent lawyers to assist them. It can also serve as attorneys in non-government matters if it is in the interest of justice to do so and if the Minister of Justice has not prohibited this. But the law does not seem to authorise the State Attorney to provide unlimited funding to private lawyers employed by a criminal accused (even if that criminal accused is a member of government).

This means if the State Attorney had decided that it was in the public interest to assist Jacob Zuma with his criminal case, it may have been permitted to brief private lawyers to assist them in handling the Zuma matter. But as far as I can tell the State Attorney’s office was not permitted to agree to pay all the legal fees of a criminal defendant for work done by the private lawyers of the defendant’s choice. If this is correct, the decision to pay Zuma’s legal fees may have been unlawful and invalid.

There is another odd aspect of the statements issued by the Presidency this week. Apart from invoking two different sections of the law to justify the decision, the two statements also contradict each other about who actually took the decision to fund Zuma’s private lawyers.

To the EFF, President Ramaphosa said that the “State Attorney decided that it was appropriate to grant the request of the former President” to fund his legal fees. But to the DA President Ramaphosa said this “decision was taken by the Presidency in 2006”.

It almost looks as if the two statements were drafted to assist litigants challenging the legality of the decision. It is impossible that the decision was done under both section 3(1) and section 3(3), and both by the State Attorney and by the Presidency, as Ramaphosa claims. A court is going to ask serious questions about the explanations and will probe whether these seemingly contradictory versions are not mutually destructive.

Whatever happens, it will be good for a court to provide a definitive answer on whether the state is legally permitted to fund the private lawyers employed by a criminal accused.

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